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 .
Information Disclosure Statement
The information disclosure statement filed 12 January 2026 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because the U.S. patent document to Ritchey is listed with an incorrect document number and the U.S. patent document to Hall is listed with an incorrect document number. It has been placed in the application file, but the information referred to therein, with regard to the two named references, has not been considered as to the merits. The information disclosure statement appears in the file in duplicate and the same notice as to the material not being considered is applicable to both. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
Claim Objections
Claim 1 is objected to because of the following informalities: In line 8, the feature, “the line” lacks an antecedent basis. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Particularly, in Claim 13, “means for ball holding” and “means for whipping” are interpreted to invoke 35 USC §112(f). In Claim 14, “means for increasing flexibility” is interpreted to invoke 35 USC §112(f). The examiner finds that the features are not limited by a definition contained in the originally filed specification.
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 13-18 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. Claim limitation “means for ball holding”, “means for increasing flexibility” (Claim 14), and “means for whipping” invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The specification suggests that the means for holding may be a holder and the means for whipping may be a line, however, the specification does not clearly indicate that the means are defined by the suggested features. Therefore, the claims are indefinite and are rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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.
Claim(s) 1, 5, 7, 13, and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cattlin, U.S. Patent Application No. 2008/0072886, in view of Veneziano, U.S. Patent No. 4,034,981, and in further view of Ashlin et al., U.S. Patent Application No. 2022/0022425, and Xiao, Q, Chinese Patent Application No. CN 1586180. As to Claim 1, Cattlin teaches an apparatus (ball thrower) comprising a holder (11) having an open end and a base end (4) opposite the open end, paragraph 0036. The open end of the holder may form a receiving cavity (interior of holder), paragraph 0036, noting that ball fits in the holder. The receiving cavity may be configured to receive and frictionally engage around a circumference of a ball having a ball circumference larger than the open end, paragraph 0036 and see Figures 6 and 9, noting that firm pressure engages the ball with the receiving cavity. Cattlin teaches a line (2) that is flexible and flaccid having a first end configured to allow a user to grip and a second end attached to the base end of the holder, paragraph 0036 and see Figure 10. Further, the examiner finds that the apparatus of prior art possesses the structural features of the claimed inventive apparatus and is capable of performing in the same manner, namely by having a user undertake a pitching motion while holding on to the first end of the line to throw the spherical ball from the holder the holder moving backward and then forward until the spherical ball has enough angular momentum to overcome the frictional engagement of the open end of the holder during forward movement so that the ball is thrown forward from the holder while the user holds on to the line. "The discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977), MPEP 2112. Cattlin does not disclose that the holder may include a base cavity between the receiving cavity and the base end. Veneziano teaches that the holder may include a base cavity between the receiving cavity and the base end, see Figures 1 and 2, noting the ball occupying an upper portion of the cup interior and a base cavity below. The base cavity may contain a portion of the line, noting knot holding the line, and the base end of the holder further including an aperture in fluid communication with the base cavity, see Figure 1, noting that the open interior of the cup provides fluid communication between the base cavity and the receiving cavity. It would have been obvious to one of ordinary skill in the art before the effective filing date to provide Cattlin with line connected with the holder by an aperture receiving the line instead of a connection with an exterior handle, to provide Cattlin, as modified, with a known substitute connection. Cattlin, as modified, does not provide that the holder may be formed from an elastomer with a resilient receiving cavity. Ashlin teaches an apparatus (pet accessory) comprising a holder (22) formed from an elastomer and having a resilient receiving cavity (open end), paragraphs 0043, 0022, and see Figure 3. It would have been obvious to one of ordinary skill in the art before the effective filing date to form the holder from an elastomer with a resilient receiving cavity, as taught by Ashlin, to provide Cattlin, as modified, with a known substitute holder material. Cattlin, as modified, discloses the claimed invention except for providing that the aperture in fluid communication with the base cavity may be unobstructed. Xiao teaches an apparatus (pet’s ball catapult), comprising a holder (11) including an unobstructed aperture (16) in fluid communication with a base cavity (15), paragraphs 0026 and 0027 and see Figure 3. It would have been obvious to one of ordinary skill in the art before the effective filing date to provide Cattlin, as modified, with an unobstructed aperture in fluid communication with the base cavity, as taught by Xiao, to provide Cattlin, as modified, with an air vent behind the ball to yield the predictable result of reducing resistance when launching and avoiding a vacuum. As to Claim 5, Cattlin teaches a second end of the line (loop portion) being configured to act as a tug toy, see Figure 10. The examiner finds that the outer diameter of the holder is capable of being gripped by a user. As to Claim 7, Cattlin, as modified, is applied as in Claim 1 with regard to the presence of the physical features. Cattlin teaches loading a ball in the holder, see Abstract, noting that the throwing device fits neatly over the ball and is able to hold the ball securely. Cattlin teaches gripping a first end of the flexible line, see abstract, noting that the line may be swung. The base end being considered to be a counterpart to the second end. A free end (when not gripped) may be capable of being gripped by a user. Cattlin teaches undertaking a pitching motion (forward/overarm throwing motion) while holding onto the free end (now gripped) to throw the ball from the holder, during which the holder moves backward and then forward until the ball has enough angular momentum to overcome the frictional engagement of the open end of the holder during the forward movement so that the ball is thrown forward from the holder while the user holds the line, see Abstract, noting that a forward overarm throwing motion inherently begins with a backward motion prior to a forward motion. As to Claim 13, Cattlin, as modified by Veneziano, Ashlin, and Xiao, is applied as in Claim 1, with the same obviousness rationale being found applicable and with the means for ball holding being considered as a counterpart to the holder, and the means for whipping being considered as a counterpart to the line. Claim 13 is treated as best understood in view of the rejection under 35 USC §112(b). As to Claim 16, Cattlin is applied as in Claim 1, with the means for holding being considered to be the holder formed from an elastomer.
Claim(s) 4, 11, and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cattlin, in view of Veneziano, Ashlin, and Xiao, and in further view of Kirkness, U.S. Patent No. 1,075,041. Cattlin, as modified, substantially shows the claimed limitations, as discussed above. As to Claim 4, Cattlin is silent as to the holder including a plurality of kerfs. Kirkness teaches an apparatus (ball-slinger) comprising a holder ( 7) including a plurality of kerfs (grooves) at an open end of a receiving cavity (8), page 1, ln. 44-49 and see Figure 1. It would have been obvious to one of ordinary skill in the art before the effective filing date to provide Cattlin, as modified, with a plurality of kerfs in the holder, as taught by Kirkness, to provide Cattlin with flexible portions of the holder to yield the predictable result of improved frictional engagement with a ball engaged with the receiving cavity. As to Claims 11 and 12, Cattlin teaches that the open end of the receiving cavity may have a diameter smaller than that of the ball, paragraph 0036, noting that the holder may be pressed to receive the ball. A portion of the ball with the ball circumference may be within the receiving cavity behind the opening, see Figure 19. Kirkness is applied as in Claim 4, with the same obviousness rationale being found applicable.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cattlin, in view of Veneziano, Ashlin, and Xiao, and in further view of Zimmerman et al., U.S. Patent No. 5,000,153. Cattlin, as modified, substantially shows the claimed limitations, as discussed above. As to Claim 6, Cattlin is silent as to exterior protrusions on the holder. Zimmerman teaches an apparatus (100) comprising a holder (170) having exterior protrusions (120), Col. 3, ln. 38-39 and 56-58 and see Figure 2a. It would have been obvious to one of ordinary skill in the art before the effective filing date to provide Cattlin, as modified, with exterior protrusions on the holder, as taught by Zimmerman, to provide Cattlin, as modified, with a textured elastomeric exterior of the holder to yield the predictable result of facilitating the action of gripping the holder.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cattlin, in view of Veneziano, Ashlin, and Xiao, as applied in Claim 1, and in further view of Meyer, U.S. Patent No. 5,415,132. Cattlin, as modified, substantially shows the claimed limitations, as discussed above. As to Claim 8, Cattlin teaches that a free end (7) may be present on the line, paragraph 0019 and see Figure 19. Cattlin does not teach presenting the free end of the line to a pet. Meyer teaches that a free end (46) of a line may be presented to a pet as a tug toy wherein the free end has a section (46) configured for the pet to bite upon, Col. 2, ln. 65 – Col. 3, ln. 1. It would have been obvious to one of ordinary skill in the art before the effective filing date to provide Cattlin, as modified, with the steps of presenting a free end of a line to a pet as a tug toy, as taught by Meyer, to provide Cattlin, as modified, with an additional use of the line and holder to yield the predicable result of adding versatility.
Claim(s) 14-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cattlin, as modified by Veneziano, Ashlin, and Xiao, as applied to claim 13 above, and further in view of Kirkness. Cattlin, as modified by Veneziano, Ashlin, and Xiao, substantially shows the claimed limitations, as discussed above. As to Claims 14 and 15, Kirkness is applied as in Claim 4, with the means for increasing flexibility being considered as a counterpart to kerfs. Claim 14 is treated as best understood in view of the rejection under 35 USC §112(b). As to Claim 17, Veneziano is applied as in Claim 1 with the same obviousness rationale being found applicable. As to Claim 18, Cattlin is applied as in Claim 1 with the means for whipping being considered as a counterpart to line. As to Claim 19, the examiner finds that ornamentation of the apparatus provided by fabric does not patentably distinguish the inventive apparatus from prior art. It has been held that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish a claimed invention from prior art, In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947) MPEP 2144/04 I.
Claim(s) 20 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cattlin, in view of Veneziano, Ashlin, and Xiao, and in further view of Zimmerman et al., U.S. Patent No. 5,000,153, and Plunk, U.S. Patent No. 5,560,320. Cattlin, as modified, substantially shows the claimed limitations, as discussed above. As to Claim 20, Cattlin, as modified, is silent as to the holder having exterior protrusions. Zimmerman is applied as in Claim 6, with the same obviousness rationale being found applicable. Veneziano is applied as in Claim 1 with regard to the line passing through a bottom opening in the base end of the holder with the line being knotted at a first end, with the same obviousness rationale being found applicable. The examiner finds that the line may be considered to be the rope. Cattlin, as modified, does not provide that a second end of the rope may be knotted. Plunk teaches a tug toy (chew toy) comprising a rope passing through a bottom opening and knotted and with a knotted second end, see Figures 1 and 2. It would have been obvious to one of ordinary skill in the art before the effective filing date to provide Cattlin, as modified, with a knotted second end, as taught by Plunk, to provide Cattlin, as modified, with a known substitute configuration for securing a rope for use as a tug toy. As to Claim 21, Plunk is applied as in Claim 20, with the same obviousness rationale being found applicable. The examiner finds that the knotted first and second ends comprise ends being sufficiently enlarged.
Claim(s) 22 and 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Cattlin, in view of Veneziano, Ashlin, and Xiao, Zimmerman, and Plunk, as applied in Claims 1 and 21, and in further view of Bush, U.S. Patent Application No. 2015/0107521. Cattlin, as modified, substantially shows the claimed limitations, as discussed above. As to Claim 22, Cattlin, as modified, does not specify that the line may be braided rope. Bush teaches a dog toy having a holder (24) and attached to a line (32) passing an opening in a base and knotted, paragraph 0019 and see Figure 2. The line may be a braided rope, paragraph 0021. It would have been obvious to one of ordinary skill in the art before the effective filing date to select braided rope as the material for forming the line, as taught by Bush, to provide Cattlin, as modified, with a known substitute material. As to Claim 23, Ashlin is applied as in Claim 1 with regard to the holder being formed from an elastomer. It follows that the holder may form a resilient hand grip.
Response to Arguments
Applicant's arguments filed 12 January 2026 have been fully considered but they are not persuasive.
Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
With regard to rejections under 35 USC §112(b), the examiner maintains the position that means plus function language cited in the rejections is not modified by structural limitations performing the claimed function. Although applicant’s amendments add language defining the purpose of the claimed means, structure is lacking. Applicant’s remarks point to structural features which are not included in claim limitations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN ELLIOTT SIMMS JR whose telephone number is (571)270-7474. The examiner can normally be reached 8:30 am - 5:00 pm - M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nicholas Weiss can be reached at (571) 270-1775. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN E SIMMS JR/Primary Examiner, Art Unit 3711 15 January 2026