DETAILED ACTION
This Office action is responsive to communication received 09/30/2025 – Request for Continued Examination (RCE) and Amendment (amendment to claims and specification).
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 .
Status of Claims
Claims 1-10, 12, 14-19 and 21-22 remain pending.
Specification
The amendment to the specification received 09/30/2025 has been entered.
Response to Arguments
In the arguments received 09/30/2025, the applicant contends that none of the prior art references of record applied in the outstanding rejections discloses or teaches the specific structure of six rows with the corresponding number of apertures as set forth in each of independent claims 1 and 9. The applicant argues that increasing the number of rods and apertures beyond eleven provides a different gameplay as compared to the prior art references of record and that the claimed arrangement of rods and apertures changes or eliminates the shooting/striking angles disclosed by the prior art references of record and thus demands that the player uses alternative levels and types of thinking and skill. The applicant argues that “the present invention enables the playing of a soccer-like ball striking game without necessary simulating a game of soccer, unlike that games/boards disclosed and taught in the cited references.” (Remarks, scanned page 3).
IN RESPONSE:
Applicant's arguments filed 09/30/2025 have been fully considered but they are not deemed persuasive. It is noted that paragraph [0004] of the specification as filed states that “[I]t is intended within the scope of the present invention to provide a tabletop game that is configured to replicate a playing of a soccer game wherein the construction of the present invention and method of play provide a realistic soccer-like experience.” There is no mention whatsoever about different gameplay or different skill level requirements as a result of having more than eleven rods and apertures on the game board. There is no criticality associated with having more than eleven rods and apertures. In fact, paragraph [0027] of the applicant’s specification states “it is contemplated within the scope of the present invention that the base member 10 could have as few as two apertures 25 and rod members 30 or a multitude of apertures 25 and rod members 30 arranged in alternate patterns”. Thus, the arguments by the applicant are considered to be conclusory. See MPEP 2145.
FOLLOWING IS AN ACTION ON THE MERITS:
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 9, 10, 12, 14, 16-19 and 22 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
As to claim 9, line 2, “the tabletop” lacks proper antecedent basis. It seems that this discrepancy is due to the deletion of the term “tabletop” in line 1 through the most-recent amendment, received 09/30/2025.
As to claims 10, 12 and 14, line 1 in each claim, “the tabletop” lacks proper antecedent basis. Again, see the comments for claim 9.
As to claims 16-19 and 22, these claims share the indefiniteness of claim 9.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 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 Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 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. The key to supporting any rejection under 35 U.S.C. 103 is the clear articulation of the reason(s) why the claimed invention would have been obvious. The Supreme Court in KSR noted that the analysis supporting a rejection under 35 U.S.C. 103 should be made explicit. In Ball Aerosol v. Ltd. Brands, 555 F.3d 984, 89 USPQ2d 1870 (Fed. Cir. 2009), the Federal Circuit offered additional instruction as to the need for an explicit analysis. The Federal Circuit explained that the Supreme Court’s requirement for an explicit analysis does not require record evidence of an explicit teaching of a motivation to combine in the prior art.
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"[T]he analysis that "should be made explicit" refers not to the teachings in the prior art of a motivation to combine, but to the court’s analysis. . . . Under the flexible inquiry set forth by the Supreme Court, the district court therefore erred by failing to take account of 'the inferences and creative steps,' or even routine steps, that an inventor would employ and by failing to find a motivation to combine related pieces from the prior art." Ball Aerosol, 555 F.3d at 993, 89 USPQ2d at 1877.
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The Federal Circuit’s directive in Ball Aerosol was addressed to a lower court, but it applies to Office personnel as well. When setting forth a rejection, Office personnel are to continue to make appropriate findings of fact as explained in MPEP § 2141 and § 2143, and must provide a reasoned explanation as to why the invention as claimed would have been obvious to a person of ordinary skill in the art at the time of the invention. This requirement for explanation remains even in situations in which Office personnel may properly rely on intangible realities such as common sense and ordinary ingenuity.
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I. EXEMPLARY RATIONALES
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Exemplary rationales that may support a conclusion of obviousness include:
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(A) Combining prior art elements according to known methods to yield predictable results;
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(B) Simple substitution of one known element for another to obtain predictable results;
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(C) Use of known technique to improve similar devices (methods, or products) in the same way;
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(D) Applying a known technique to a known device (method, or product) ready for improvement to yield predictable results;
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(E) "Obvious to try" – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success;
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(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;
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(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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 and 21 are rejected under 35 U.S.C. 103(a) as being unpatentable over Pohl (USPN 7,204,487) in view of Witherill (US PUBS 2020/0222795), and also in view of Pakogian (USPN 4,274,635), and also in view of Braunschweig (USPN 10,722,781).
Reference is made to the following explanation along with the annotated version of FIG. 2 of Pohl, as shown herein below:
As to claim 1, Pohl shows a game apparatus (2; FIG. 2; Title; Abstract) wherein the game apparatus (2) comprises: a base member, said base member being planar, said base member having a first end and a second end (col. 2, line 24), said base member having an upper surface (30); a plurality of apertures (i.e., nails are pounded into the game surface and thus form apertures; col. 2, line 60) being formed in said upper surface (30) of said base member on opposing halves thereof (line 6 marks the halfway distance across the upper surface); a plurality of rod members (i.e., nails 32-42; col. 2, lines 62-63), each of said rod members being inserted into a corresponding one of said apertures (i.e., again, the nails 32-42 are pounded into the game surface, thus being inserted into the apertures), said rod members being perpendicular to said base member and extending upward from said apertures; a wall member, said wall member being perpendicular to said base member and extending upward therefrom, wherein said wall member includes a first end wall member, said wall member further including a second end wall member, said first end wall member having a void proximate a midpoint thereof, said second end wall member having a void proximate a midpoint thereof; and at least one ball striking member (46, 48), said at least one ball striking member (46, 48) configured to strike a ball member (44) superposed on the upper surface of the base member.
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Pohl does not exactly show that the wall member is circumferentially present around a “perimeter edge of said base member” and that the first end wall is “proximate said first end of said base member” and that the second end wall is “proximate said second end of said base member”. Rather, in Pohl, the first and second end walls appear to be indented inwardly away from the peripheral edges of the base member. Here, Witherill (FIG. 2) shows it to be old in the art of tabletop games to attach a surrounding wall member (200) to a base member (110) along a circumferential portion of the base member, wherein the first and second end walls are located proximate the first and second ends, respectively, of the base member, such that the entire surface area of the base member is available for game play. In Witherill, the arrangement enables the game to be played with or without a surrounding wall member (i.e., paragraph [0024]) and in either scenario the full extent of the upper surface of the base member is available for game play. Similar to the sidewall and end wall members that surround the upper playing surface in Pohl, the wall member (200) in Witherill is also elastic in construction. In view of the teaching in Witherill, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the device in Pohl to have the wall member arranged around a perimeter edge of the base member and to have the first end and second end wall members located proximate the first end and second end, respectively, of the base member, as this type of construction would have enabled play of the game across the full extent of the upper surface and thus increasing the extent of travel of the ball across the upper surface and enhancing the game experience.
Pohl does not explicitly disclose the specific claimed arrangement of a first row, a second row, a third row, a fourth row, a fifth row and a sixth row, with these rows arranged in a specific order and with each row comprising a specific number of apertures, as now recited in each of claims 1 and 21. Pakogian teaches that a game board may be provided with a plurality of apertures arranged into rows of apertures into which an obstruction or peg (30) may be selectively placed in a respective aperture on the game board so as to alter the strategy of a player in maneuvering a game ball across the game board towards a goal or end target (i.e., col. 1, lines 43-63; and col. 2, lines 65-68 in Pakogian). In addition, Braunschweig teaches that the number and position of the openings and pegs may be rearranged to make the game more or less difficult and/or to more realistically simulate the positions or players on an athletic team (i.e., col. 13, lines 47-67). In view of the combined teachings of Pakogian and Braunschweig, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the game board in Pohl to include the specific claimed arrangement and numbers of apertures in each of a first, second, third, fourth, fifth and six row, with there being a reasonable expectation of success that arranging the number of rows and apertures according to a predetermined pattern would have enabled the skilled artisan to alter the skill level of the game by forcing a player to more tactfully navigate a game ball across the game board based upon the configuration of rows of apertures and corresponding obstacles corresponding to the rod members inserted within the apertures. Moreover, the arrangement of the apertures/rows, even absent the teachings of Pakogian and Braunschweig, would have simply involved a rearrangement of parts in order to enhance the skill level of the game. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
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Claims 2-4, 7-8 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Pohl (USPN 7,204,487) in view of Witherill (US PUBS 2020/0222795), and also in view of Pakogian (USPN 4,274,635), and also in view of Braunschweig (USPN 10,722,781), and also in view of Navarro (USPN 7,147,225).
As to claim 2, Pohl, as modified by Witherill, Pakogian and Braunschweig, does not explicitly disclose “a covering, said covering being superposed said upper surface of said base member, wherein the covering is manufactured from a textile material, said covering having indicia thereon wherein the indicia represents markings on a soccer field”. Note, the upper surface in Pohl does include the usual and customary indicia associated with a game of soccer. Navarro shows it to be old in the art of tabletop games to install a fabric covering atop a game surface, wherein the covering includes printed regulation boundaries, with the characteristic nature of the fabric enabling a ball to smoothly cross the playing surface (see Abstract; col. 2, lines 25-27). In view of the teaching in Navarro, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the device in Pohl by introducing a covering made from a textile material that is imprinted with ‘soccer field’ markings placed atop the upper surface, the motivation being to provide a surface that would have enabled movement of the projectile to be stable and smooth across the game surface so as to enhance the playing experience. This modification would have involved using a known technique (i.e., placing the fabric covering of Navarro upon a playing surface, which provides a stable and smooth rolling surface for a projectile) to improve a similar device (i.e., both Pohl and Navarro show tabletop game structures intended to simulate a game of soccer). KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
As to claim 3, Pohl further includes a first net member (10), said first net member (10) being operably coupled to the void of the first end wall member, said first net member having a portion of said base member extending thereunder (i.e., at least an upper surface of the base member extends under the first net member).
As to claim 4, Pohl further includes a second net member (8), said second net member (8) being operably coupled to said void of said second end wall member, said second net member (8) having a portion of said base member extending thereunder.
As to claim 7, said first net member (10) in Pohl further includes a mesh material (i.e., the net 10 resembles a web-like pattern or construction) supported by at least one support member (i.e., mounting nails or posts shown on each end adjacent the net opening support the mesh material).
As to claim 8, Pohl includes a ball member (44), said ball member (44) operable to be engaged by said at least one ball striking member (46, 48).
As to claim 15, Pohl shows the first net member (10) and a second net member (8), each of which includes a mesh member supported by at least one support member (i.e., the nets 8, 10 resemble a web-like pattern or construction) and supported by at least one support member (i.e., mounting nails or posts shown on each end adjacent the net opening support the mesh material).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Pohl (USPN 7,204,487) in view of Witherill (US PUBS 2020/0222795), and also in view of Pakogian (USPN 4,274,635), and also in view of Braunschweig (USPN 10,722,781), and also in view of Bouton (USPN 5,042,860).
As to claim 5, Pohl, as modified by Witherill, Pakogian and Braunschweig, does not explicitly disclose that the ball striking member has first and second ends “having a width greater than that of a midpoint of said at least one ball striking member”. Note, the Pohl device includes ball striking members (46, 48) described as Popsicle® sticks (i.e., col. 3, line 11). Though Pohl does not depict ends of the sticks (46, 48) having a greater width than a midpoint of the ball striking member, the claimed configuration of the ball striking member is deemed to be an obvious change in shape over the Pohl reference. See In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.). Even if one were to argue that the claimed arrangement is not merely an obvious change in shape over Pohl, attention is directed to the support stick (10) shown in FIG. 3 of Bouton, wherein Bouton shows that the stick, which is in what may be considered an art equivalent to confectionary sticks or Popsicle® sticks, includes curved ends and a narrower (in width) central portion. The stick (10) in Bouton generally resembles a silhouette of a sporting implement such as a baseball bat for aesthetics and amusement (i.e., col. 3, lines 2-15). In view of the above reasoning and the teaching in Bouton, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the device in Pohl by structuring the ball striking members (46, 48) to include ends having a width greater than that of a midpoint of said at least one ball striking member, if not just from a design perspective, but to also provide a comfortable gripping area for a player’s fingers at the middle of the ball striking member and to provide an end or striking area large enough to make contact with the projectile.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Pohl (USPN 7,204,487) in view of Witherill (US PUBS 2020/0222795), and also in view of Pakogian (USPN 4,274,635), and also in view of Braunschweig (USPN 10,722,781), and also in view of Daravina (USPN 5,092,595).
As to claim 6, Pohl includes a score keeping element (54, 56). However, Pohl does not show that the score keeping element is movably coupled ”to an upper edge of said wall member”. Such a modification would appear to involve an obvious rearrangement of parts. See In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice). Even if one were to argue that the claimed arrangement for the score keeping element is not an obvious variation over Pohl, one need only look to the teaching in Daravina, wherein a score keeping device (25) is arranged and movably coupled across a top of a wall member to permit ease of score keeping (i.e., col. 4, lines 9-12). In view of the above reasoning and the further teaching in Daravina, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the device in Pohl by placing the score keeping devices (54, 56) movably coupled to an upper edge of said wall member in order to make it simpler for a player to track the score during game play. This modification would have involved the simple substitution of one known element (i.e., the vertically-oriented score keeping set-up in Pohl) for another (i.e., the horizontally-oriented score keeping set-up in Daravina) to yield the predictable result of facilitating score keeping for a player). KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Claims 9, 14, 16-19 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Pohl (USPN 7,204,487) in view of Witherill (US PUBS 2020/0222795), and also in view of Pakogian (USPN 4,274,635), and also in view of Braunschweig (USPN 10,722,781), and also in view of Navarro (USPN 7,147,225), and also in view of Arroyo (USPN 5,372,364).
Reference is made to the following annotated version of FIG. 2 of Pohl, as shown below, along with the accompanying explanations that follow thereafter:
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As to claim 9, Pohl shows a tabletop game apparatus (Title; Abstract) operable to accommodate at least two players (i.e., a pair of score keeping devices along with a pair of ball projectors and both offensive and defensive players on the field are available for a two-player environment); wherein the tabletop game apparatus comprises: a base member, said base member being planar, said base member having a first end and a second end (col. 2, line 24), said base member having an upper surface (30); at least two apertures (i.e., nails are pounded into the game surface and thus form apertures; col. 2, line 60) being formed in said upper surface (30) of said base member on opposing halves thereof (line 6 marks the halfway distance across the upper surface); at least two rod members (i.e., nails 32-42; col. 2, lines 62-63), said at least two rod members being inserted into said at least two apertures (i.e., again, the nails 32-42 are pounded into the game surface, thus being inserted into the apertures), said at least two rod members being perpendicular to said base member and extending upward from said at least two apertures; a wall member, said wall member being perpendicular to said base member and extending upward therefrom, wherein said wall member includes a first end wall member, said wall member further including a second end wall member, said first end wall member having a void proximate a midpoint thereof, said second end wall member having a void proximate a midpoint thereof; and at least one ball striking member (46, 48) said at least one ball striking member (46, 48) configured to strike a ball member (44) superposed on the upper surface of the base member.
Pohl does not exactly show that the wall member is circumferentially present around a “perimeter edge of said base member” and that the first end wall is “proximate said first end of said base member” and that the second end wall is “proximate said second end of said base member”. Rather, in Pohl, the first and second end walls appear to be indented inwardly away from the peripheral edges of the base member. Here, Witherill (FIG. 2) shows it to be old in the art of tabletop games to attach a surrounding wall member (200) to a base member (110) along a circumferential portion of the base member, wherein the first and second end walls are located proximate the first and second ends, respectively, of the base member, such that the entire surface area of the base member is available for game play. In Witherill, the arrangement enables the game to be played with or without a surrounding wall member (i.e., paragraph [0024]) and in either scenario the full extent of the upper surface of the base member is available for game play. Similar to the sidewall and end wall members that surround the upper playing surface in Pohl, the wall member (200) in Witherill is also elastic in construction. In view of the teaching in Witherill, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the device in Pohl to have the wall member arranged around a perimeter edge of the base member and to have the first end and second end wall members located proximate the first end and second end, respectively, of the base member, as this type of construction would have enabled play of the game across the full extent of the upper surface and thus increasing the extent of travel of the ball across the upper surface and enhancing the game experience.
Pohl does not explicitly disclose “a covering, said covering being manufactured from a textile, said covering having indicia imprinted thereon” with “markings on a soccer field”. Note, the upper surface in Pohl does include the usual and customary indicia associated with a game of soccer. Navarro shows it to be old in the art of tabletop games to install a fabric covering atop a game surface, wherein the covering includes printed regulation boundaries, with the characteristic nature of the fabric enabling a ball to smoothly cross the playing surface (see Abstract; col. 2, lines 25-27). In view of the teaching in Navarro, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the device in Pohl by introducing a covering made from a textile material that is imprinted with ‘soccer field’ markings, the motivation being to provide a surface that would have enabled movement of the projectile to be stable and smooth across the game surface so as to enhance the playing experience. This modification would have involved using a known technique (i.e., placing the fabric covering of Navarro upon a playing surface, which provides a stable and smooth rolling surface for a projectile) to improve a similar device (i.e., both Pohl and Navarro show tabletop game structures intended to simulate a game of soccer). KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Further, Pohl does not explicitly disclose that the base member “extending beyond said first end wall member and extending beyond said second end wall member”. Here, Arroyo shows it to be old in the art of simulated tabletop games to include a goal area arranged with a wall segment that cooperates with the sidewall members of the base member wall to create a retention space behind a void in the end wall members, whereby a spent projectile is retained in the retention area. The retention space in Arroyo holds or retains a spent projectile behind the goal line area and makes it easier for a player to retrieve the projectile. See FIGS. 1, 2 and 4 and col. 3, lines 40-58 in Arroyo. In view of the teaching in Arroyo, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the device in Pohl by arranging the sidewall members to include portions extending beyond the end wall members so as to form a retention space behind the void to allow a spent projectile to be retained behind the ‘goal line’. In this way, players would clearly be aware of a goal being scored. This modification would have involved combining prior art elements (i.e., the retention space taught by Arroyo with the nets used in Pohl) according to known methods to yield predictable results (i.e., to enhance the ability of a player to recognize that a goal has been scored). KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Pohl does not explicitly disclose the specific claimed arrangement of a first row, a second row, a third row, a fourth row, a fifth row and a sixth row, with these rows arranged in a specific order and with each row comprising a specific number of apertures, as now recited in each of claims 9 and 22. Pakogian teaches that a game board may be provided with a plurality of apertures arranged into rows of apertures into which an obstruction or peg (30) may be selectively placed in a respective aperture on the game board so as to alter the strategy of a player in maneuvering a game ball across the game board towards a goal or end target (i.e., col. 1, lines 43-63; and col. 2, lines 65-68 in Pakogian). In addition, Braunschweig teaches that the number and position of the openings and pegs may be rearranged to make the game more or less difficult and/or to more realistically simulate the positions or players on an athletic team (i.e., col. 13, lines 47-67). In view of the combined teachings of Pakogian and Braunschweig, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the game board in Pohl to include the specific claimed arrangement and numbers of apertures in each of a first, second, third, fourth, fifth and six row, with there being a reasonable expectation of success that arranging the number of rows and apertures according to a predetermined pattern would have enabled the skilled artisan to alter the skill level of the game by forcing a player to more tactfully navigate a game ball across the game board based upon the configuration of rows of apertures and corresponding obstacles corresponding to the rod members inserted within the apertures. Moreover, the arrangement of the apertures/rows, even absent the teachings of Pakogian and Braunschweig, would have simply involved a rearrangement of parts in order to enhance the skill level of the game. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
As to claim 14, Pohl includes a ball member (44), said ball member (44) operable to be engaged by said at least one ball striking member (46, 48).
As to claim 16, Pohl further includes a first net member (10), said first net member (10) being operably coupled to the void of the first end wall member. See annotated FIG. 2 of Pohl.
As to claim 17, Pohl further includes a second net member (8), said second net member (8) being operably coupled to said void of said second end wall member. See annotated FIG. 2 of Pohl.
As to claim 18, said first net member (10) in Pohl further includes a mesh material (i.e., the net 10 resembles a web-like pattern or construction) supported by at least one support member (i.e., mounting nails or posts shown on each end adjacent the net opening support the mesh material).
As to claim 19, Pohl shows the first net member (10) and a second net member (8), each of which includes a mesh member supported by at least one support member (i.e., the nets 8, 10 resemble a web-like pattern or construction) and supported by at least one support member (i.e., mounting nails or posts shown on each end adjacent the net opening support the mesh material).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Pohl (USPN 7,204,487) in view of Witherill (US PUBS 2020/0222795), and also in view of Pakogian (USPN 4,274,635), and also in view of Braunschweig (USPN 10,722,781), and also in view of Navarro (USPN 7,147,225), and also in view of Arroyo (USPN 5,372,364), and also in view of Bouton (USPN 5,042,860).
As to claim 10, Pohl, as modified by Witherill, Pakogian, Braunschweig, Navarro and Arroyo, does not explicitly disclose that the ball striking member includes ”a midpoint wherein the midpoint has a width that is less than that of said first end and said second end of said at least one ball striking member”. Note, the Pohl device includes ball striking members (46, 48) having rounded ends of equivalent width and described as Popsicle® sticks (FIG. 2; col. 3, line 11). Though Pohl does not depict the sticks (46, 48) with a midpoint wherein the midpoint has a width that is less than that of said first end and said second end of said at least one ball striking member, the claimed configuration of the ball striking member is deemed to be an obvious change in shape over the sticks (46, 48) used by Pohl. See In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966) (The court held that the configuration of the claimed disposable plastic nursing container was a matter of choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration of the claimed container was significant.). Even if one were to argue that the claimed arrangement is not merely an obvious change in shape over the Pohl device, attention is directed to the support stick (10) shown in FIG. 3 of Bouton, wherein Bouton shows that the stick, which is in what may be considered an art equivalent to confectionary sticks or Popsicle® sticks, includes curved ends and a narrower (in width) central portion. The stick (10) in Bouton generally resembles a silhouette of a sporting implement such as a baseball bat for aesthetics and amusement (i.e., col. 3, lines 2-15). In view of the above reasoning and the teaching in Bouton, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the device in Pohl by structuring the ball striking members (46, 48) to include ends having a width greater than that of a midpoint of said at least one ball striking member, if not just from a design perspective, but to also provide a comfortable gripping area for a player’s fingers at the middle of the ball striking member and to provide an end or striking area large enough to make contact with the projectile.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Pohl (USPN 7,204,487) in view of Witherill (US PUBS 2020/0222795), and also in view of Pakogian (USPN 4,274,635), and also in view of Braunschweig (USPN 10,722,781), and also in view of Navarro (USPN 7,147,225), and also in view of Arroyo (USPN 5,372,364), and also in view of Daravina (USPN 5,092,595).
As to claim 12, Pohl includes a score keeping element (54, 56). However, Pohl does not show that the score keeping element is movably coupled “to an upper edge of said wall member”. Such a modification would appear to involve an obvious rearrangement of parts. See In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice). Even if one were to argue that the claimed arrangement for the score keeping element is not an obvious variation over Pohl, one need only look to the teaching in Daravina, wherein a score keeping device (25) is arranged and movably coupled across a top of a wall member to permit ease of score keeping (i.e., col. 4, lines 9-12). In view of the above reasoning and the further teaching in Daravina, it would have been obvious to one of ordinary skill in the art and before the effective filing date of the claimed invention to have modified the device in Pohl by placing the score keeping devices (54, 56) movably coupled to an upper edge of said wall member in order to make it simpler for a player to track the score during game play. This modification would have involved the simple substitution of one known element (i.e., the vertically-oriented score keeping set-up in Pohl) for another (i.e., the horizontally-oriented score keeping set-up in Daravina) to yield the predictable result of facilitating score keeping for a player). KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Further References of Interest
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
See col. 5, line 55 through col. 6, line 20 in Peterson.
See col. 4, lines 42-50 in Fabian.
Conclusion
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SEBASTIANO PASSANITI
Primary Examiner
Art Unit 3711
/SEBASTIANO PASSANITI/Primary Examiner, Art Unit 3711