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 .
Examiner's Note
Examiner has cited particular paragraphs and/or columns and line numbers and/or figures in the references as applied to the claims below for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested from the applicant, in preparing the responses, to fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner. The Examiner notes that it has been held that a recitation that a structural element is "adapted to", “configured to”, “capable of, “arranged to”, “intended to” or “operable to” perform a function does not limit the claim to a particular structure and thus only requires the ability to so perform the function. (See In re Hutchison, 69 USPQ 138. See also, MPEP 2111.04) As such, under the broadest reasonable interpretation of the claims and the prior art, the recitations of "adapted to", “configured to”, “capable of, “arranged to”, “intended to” or “operable to” will be deemed met by an element in the prior art capable of performing the function recited in connection with "adapted to", “configured to”, “capable of, “arranged to”, “intended to” or “operable to”. The examiner is aware of the functional language in the various claims.
Disclaimer
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.
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.
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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Sole et al. (US Patent No. 4,168,066) in view of Jones (US Patent No. 3,806,122) and Parker et al. (US Patent No. 10,058,754).
Regarding claims 1-3, 6 and 7, Sole discloses a target assembly (50), comprising: a frame assembly comprising a plurality of frame elements (60,62,64) , wherein each frame element of the plurality of frame elements defines an opening (see Figure 6); wherein each of the plurality of frame elements is welded to adjacent, other frame elements of the plurality of frame elements (column 2 lines 55-56 discloses that the frame elements could be metal and may be connected by any suitable fastener such as an adhesive or the like. Since the reference teaches the use of metal material and that the components could be connected by adhesive or the like, since welding metal materials to one another is a very well commonly known method of attaching component and the term “or the like” is regarded as being included); and the periphery of the frame assembly generally follows a triangular shape (see Figure 6). Sole does not disclose the frame elements as being substantially having the same shape. However, the use of frame elements/target elements being same shape is not a new concept and Jones is one example of reference that teaches frame elements could be different shapes as shown in Figure 3 or same shapes as shown in Figure 2. Therefore, it would have been obvious to one of ordinary skill in the art to substitute the frame elements of Sole to have same shape to use a known alternative target means.
Sole does not disclose a plurality of target elements, wherein each of the plurality of target elements is positioned at least partially within an associated frame element of the plurality of frame elements. However, using target elements being positioned in associated frame element is not a new concept and Parker teaches target elements (112) positioned within associated frame element (110,104) as shown in Figure 8 of the Parker reference. It would have been obvious to one of ordinary skill in the art to provide the Sole device with target
Regarding claims 4-5, Sole does not explicitly disclose the target elements as comprising foam or rubber or comprising at least one of polyethylene foam, EVA foam, Volara ® foam, FloTex ® foam, and neoprene foam. It would have been obvious to one having ordinary skill in the art at the time of the invention was made to make the target elements as recited in the claims, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Regarding claim 8, Parker teaches wherein each of the plurality of target elements has a front surface (the right end of component 112 as shown in Figure 2) and a back surface (the left end of component 112 as shown in Figure 2), wherein the back surface is larger than the front surface. It should be noted that examiner is giving the broadest reasonable interpretation of the claims as set forth in MPEP 904.01(a). The examiner notes that apparatus claims must be structurally distinguishable from the prior art. SEE MPEP 2114.
Regarding claim 9, wherein: the frame elements are arranged in a plurality of rows; the number of frame elements per row increases in an arithmetic progression; and the arithmetic progression begins with 1 and increases by 1 (see Figure 6 of Sole).
Regarding claim 10, wherein the opening of each of the plurality of frame elements generally defines a circle, square, triangle, parallelogram, trapezoid, or polygon ( as shown in figure 6 of Sole, the opening is a circle).
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 (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 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(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 11-13 and 18-21 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Parker et al. (US Patent No. 10,058,754).
Regarding claim 11, Parker discloses a target assembly (100), comprising: a frame assembly or body (102), wherein the frame assembly or body defines a plurality of openings (104); a plurality of target elements (112), wherein each of the plurality of target elements is positioned at least partially within an associated opening of the plurality of openings (see Figure 3); wherein: each of the plurality of openings is substantially the same shape (see Figures 1-4); the openings are arranged in a plurality of rows; and wherein the number of openings per row increases in an arithmetic progression, and wherein the arithmetic progression begins with 1 and increases by 1 (see Figures 1-4).
Regarding claim 12, wherein each of the openings is substantially circular (see Figure 1).
Regarding claim 13, wherein each of the plurality of target elements is tapered (as shown in Figure 2, component 112 is tapered).
Regarding claim 18, wherein each of the plurality of target elements has a front surface (the right end of component 112 as shown in Figure 2) and a back surface (the left end of component 112 as shown in Figure 2), wherein the back surface is larger than the front surface. It should be noted that examiner is giving the broadest reasonable interpretation of the claims as set forth in MPEP 904.01(a). The examiner notes that apparatus claims must be structurally distinguishable from the prior art. SEE MPEP 2114.
Regarding claim 19, wherein the periphery of the frame assembly generally follows a triangular shape (see Figure 1).
Regarding claim 20, see rejection of claim 11 above and see Figures 1-4.
Regarding claim 21, further comprising: a base (106), the base configured with mounting holes (120); and support elements sized and configured to support the frame body, when the support elements are positioned within the mounting holes, at a desired orientation (see Figure 4).
Claims 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Parker.
Parker does not explicitly disclose the recited material types for the target elements and for the frame assembly. It would have been obvious to one having ordinary skill in the art at the time of the invention was made to use any type of material including the ones recited, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Conclusion
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to NINI F LEGESSE whose telephone number is (571)272-4412. The examiner can normally be reached Mon - Friday 9 AM - 5:30 PM.
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/NINI F LEGESSE/Primary Examiner, Art Unit 3711