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 .
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,911,675 B2 to Engler. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-20 are anticipated by patent claims 1-20. Patent claim 1 of Engler ‘675 recites in relevant part a rigid structure including a base portion and a frame portion and a plurality of regularly spaced circular and/or non-circular holes. Therefore, patent claim 1 of Engler ‘675 is in essence a “species” of the generic invention of application claim 1. It has been held that a generic invention is “anticipated” by a “species” within the scope of the generic invention. See In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993).
Drawings
Figures 1-4 should be designated by a legend such as --Prior Art-- because only that which is old is illustrated. See MPEP § 608.02(g). Corrected drawings in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. The replacement sheet(s) should be labeled “Replacement Sheet” in the page header (as per 37 CFR 1.84(c)) so as not to obstruct any portion of the drawing figures. If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The Specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required:
The Specification does not disclose wherein the flexible material comprises a plurality of circular and non-circular holes, as recited in claim 1; and
The Specification does not disclose wherein the sports figure may comprise at least one of a basketball player, a baseball player, a soccer player, a hockey player, a lacrosse player, a rugby player, or a volleyball player, as recited in claims 4 and 20.
The disclosure is further objected to because of the following informality: “75% of more of the material” recited on p. 8 should likely read “75% [[of]]or more of the material”. Appropriate correction is required.
Claim Objections
Claims 9, 11 and 13-14 are objected to because of the following informalities:
“frame portion” recited in claim 9, ln. 2 & 3, and claim 13, ln. 1-2 & 3 should likely read “frame
“The training device of claim 1, further comprising the rigid structure, wherein” recited in claim 11, ln. 1 should likely read “The training device of claim 1,
“wherein the one or more fasteners comprise one or more hooks, loops, ties, magnets, ropes, buttons, and/or clips” recited in claim 14, ln. 1-2 should likely read “wherein the one or more fasteners comprise one or more hooks, loops, ties, magnets, ropes, buttons, and.
Appropriate correction is required.
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 1-20 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 1 recites in part “the flexible material comprises a plurality of circular and/or non-circular holes”. It is indefinite as to whether the flexible material comprises a plurality of circular holes and non-circular holes, or a plurality of circular holes or non-circular holes.
All dependent claims are rejected by virtue of their dependencies on claim 1.
Claim 1 further recites in part “the flexible material comprises […] an organic and/or synthetic fabric”. It is indefinite as to whether the flexible material comprises an organic and synthetic fabric, or an organic or synthetic fabric.
Claim 1 further recites in part “a realistic opponent”. The term “realistic” is a relative term which renders the claim indefinite. The term “realistic” is not defined by the claim, the Specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 18 is rejected for similar reasoning (see claim 18, ln. 2, “a realistic image”).
Claims 19-20 are rejected by virtue of their dependencies on claim 18.
Claim 3 recites the limitation "the realistic image" in ln 1. There is insufficient antecedent basis for this limitation in the claim.
A suggested amendment is as follows: “the realistic opponent portion”.
Claim 20 recites in part “wherein the sports figure comprises at least a portion of: a basketball player, a baseball player, a football player, a soccer player, a hockey player, a lacrosse player, a rugby player, and/or a volleyball player. It is indefinite as to whether the sports figure comprises at least a portion of a basketball player, a baseball player, a football player, a soccer player, a hockey player, a lacrosse player, a rugby player, and a volleyball player, or at least a portion of a basketball player, a baseball player, a football player, a soccer player, a hockey player, a lacrosse player, a rugby player, or a volleyball player.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 5 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 5 recites “The training device of claim 1, wherein the flexible material comprises a fabric.” However, claim 1 previously recites “the flexible material comprises a plurality of circular and/or non-circular holes disposed therein and an organic and/or synthetic fabric disposed between the plurality of circular and/or non-circular holes”. Accordingly, claim 1 already recites wherein the flexible material comprises a fabric. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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.
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 1-8, 11, and 14-17 are rejected under 35 U.S.C. 103 as being unpatentable over Humboldt (U.S. 5,573,240 A) in view of Farquhar (U.S. Pub. 2007/0265115 A1).
Regarding claim 1, Humboldt discloses a training device (Figs. 3-4; Col. 1, ln.6-25, baseball backstop for pitching training) comprising:
a flexible material configured to be coupled to a rigid structure (Figs. 3-4; Col. 2, ln. 41-57; Col. 3, ln. 22-32, netting 66 (e.g., meshed material) is attached to frame 12 which is made of any suitable material (e.g., metal, wood, or plastic)); wherein:
the flexible material comprises a plurality of circular and/or non-circular holes disposed therein and an organic and/or synthetic fabric disposed between the plurality of circular and/or non-circular holes (Figs. 3-4; Col. 3, ln. 29-31, wherein the netting 66 is made of meshed material which comprises a plurality of holes with the synthetic meshed material disposed between the plurality of holes);
the organic and/or synthetic fabric comprises an image portion configured to be visible from a front side and a back side of the flexible material via a saturated marking of the image portion (Figs. 3-4; Col. 3, ln. 39-45; Col. 4, ln. 53-Col. 5, ln. 8, wherein materials 68, 78, and/or 80 may be attached to the netting 66 such that the netting comprises an image portion (e.g., images of a target, adult baseball player, and/or child baseball player) visible from a front side (Fig. 3) and a back side (Fig. 4) of the netting); and
the image portion comprises a depiction of a realistic opponent (Figs. 3-4; Col. 4, ln. 53-65, e.g., adult and/or child baseball player(s)).
Humboldt may not explicitly further disclose the realistic opponent comprising at least one non-profile feature. However, Farquhar, directed to a device for goal scoring practice (Fig. 1; [0001]; [0014]), teaches this limitation (Fig. 1; [0014], wherein a front surface 12 comprising a nylon fabric capable of being printed, silk-screened, or similarly decorated with graphics includes a front view depiction of a goaltender). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to provide a realistic opponent comprising at least one non-profile feature, as taught by Farquhar, based on the sport and/or desired training (Farquhar, Fig. 1; [0001]; [0014], wherein a front view of a hockey goaltender may be provided for hockey goal scoring practice).
Regarding claim 2, Humboldt may not explicitly further disclose, however, Farquhar teaches wherein the at least one non-profile feature of the image portion corresponds to a face of the realistic opponent (Fig. 1; [0014], where the front view of the hockey goaltender includes a face (helmet) of the goaltender).
Regarding claim 3, Humboldt further discloses wherein the realistic image comprises a sports figure (Figs. 3-4; Col. 4, ln. 53-65, adult and/or child baseball player(s)).
Regarding claim 4, Humboldt further discloses wherein the sports figure comprises at least one of: a basketball player, a baseball player (Figs. 3-4; Col. 4, ln. 53-65, adult and/or child baseball player(s)), a football player, a soccer player, a hockey player, a lacrosse player, a rugby player, or a volleyball player.
Regarding claim 5, Humboldt further discloses wherein the flexible material comprises a fabric (Col. 3, ln. 29-31; Col. 3, ln. 46-50; Col. 4, ln. 53-59, wherein the netting 66 may be made of a meshed material, and further wherein the material(s) attached to and further comprising the netting (flexible material) may be made of canvass material).
Regarding claim 6, Humboldt discloses the netting comprised of meshed material, and additional material (e.g., material 68, 78, and/or 80) attached to the netting forming the flexible material of the training device (Fig. 3; Col. 3, ln. 29-31; Col. 3, ln. 39-45; Col. 5, ln. 5-8). Humboldt may not explicitly disclose wherein the plurality of holes comprises 25% or less of the flexible material. However, it would have been obvious based on the configuration of the flexible material dependent on the desired training (e.g., whether all three additional materials 68, 78, and 80 are provided).
Additionally, and/or alternatively, it would have been an obvious matter of design choice to a person of ordinary skill in the art before the effective filing date of the claimed invention to adjust the percentage of the plurality of holes to comprise 25% or less of the flexible material because Applicant has not disclosed that the plurality of holes comprising 25% or less of the flexible material provides an advantage, is used for a particular purpose, or solves a stated problem (see Specification, p. 8, “It will be appreciated that material 530 may contain any number of non-circular holes (or airspace), and the airspace may be smaller or larger than is shown in FIGS 5A-8B. For example, in certain aspects, the airspace in material 530 may comprise 50% of the volume of material 530. In other aspects, the airspace may comprise 75% of more of the material, but in other aspects, the airspace may comprise 25% or less of the material.”). One of ordinary skill in the art, furthermore, would have expected Humboldt to perform equally well with the flexible material comprising a plurality of holes which comprises 25% or less of the flexible material, wherein the flexible material would still perform the intended functions of stopping the ball, as well as creating a noise different from that which would be created by the ball hitting the heavy cloth material of materials 68, 78, and/or 80, thereby still allowing a determination of a “ball” (Humboldt, Col. 1, ln. 16-25; Col. 3, ln. 29-31; Col. 3, ln. 46-50; Col. 4, ln. 53-59). Therefore, it would have been an obvious matter of design choice to modify the percentage of the plurality of holes of the flexible material of Humboldt to comprise 25% or less of the flexible material to obtain the invention as specified in the claim.
Regarding claim 7, Humboldt further discloses wherein the flexible material comprises a multi-layered fabric (Figs. 1 & 3; Col. 3, ln. 39-45; Col. 5, ln. 5-8, wherein the netting is comprised of multiple layers of fabric (e.g., netting 66 and fabric material(s) 68, 78, and/or 80)).
Regarding claim 8, Humboldt further discloses wherein the image portion comprises a target (Fig. 3; Col. 3, ln. 39-50, wherein the material 68 may be attached to the netting and comprises a target (strike zone)).
Regarding claim 11, Humboldt further discloses wherein the flexible material comprises one or more fasteners configured to couple the flexible material to the rigid structure (Fig. 3; Col. 2, ln. 49-57; Col. 3, ln. 22-28, wherein the netting is attached across the area bound by a horizontal top support and left and right vertical supports of the frame via any suitable manner, such as by typing pieces of rope or string through the netting and to the top support, the left support, and the right support).
Regarding claim 14, Humboldt further discloses wherein the one or more fasteners comprise one or more hooks, loops, ties, magnets, ropes, buttons, and/or clips (Fig. 3; Col. 3, ln. 22-28, wherein the netting is attached across the area bound by the horizontal top support and the left and right vertical supports via any suitable manner, such as by typing pieces of rope or string through the netting and to the top support, the left support, and the right support).
Regarding claim 15, Humboldt further discloses wherein the plurality of holes are regularly spaced and comprise 10% or more of the flexible material, and wherein the flexible material comprises a nylon fabric, a fiber mesh, an at least semi-opaque or semi-transparent material, a see through material, or a multilayered or single layered fabric (Fig. 3; Col. 3, ln. 29-31, wherein the netting comprises a meshed material comprising regularly spaced holes comprising 10% or more of the flexible material; Col. 3, ln. 39-45; Col. 5, ln. 5-8, wherein the flexible material comprises multiple layers of fabric (e.g., netting 66 and fabric material(s) 68, 78, and/or 80)).
Regarding claim 16, Humboldt discloses the netting comprised of meshed material, and additional material (e.g., material 68, 78, and/or 80) attached to the netting forming the flexible material of the training device (Fig. 3; Col. 3, ln. 29-31; Col. 3, ln. 39-45; Col. 5, ln. 5-8). Humboldt may not explicitly disclose wherein the plurality of holes comprises 50% of the flexible material. However, it would have been obvious based on the configuration of the flexible material dependent on the desired training (e.g., if just the target 68 and adult player are provided).
Additionally, and/or alternatively, it would have been an obvious matter of design choice to a person of ordinary skill in the art before the effective filing date of the claimed invention to adjust the percentage of the plurality of holes to comprise 50% of the flexible material because Applicant has not disclosed that the plurality of holes comprising 50% of the flexible material provides an advantage, is used for a particular purpose, or solves a stated problem (see Specification, p. 8, “It will be appreciated that material 530 may contain any number of non-circular holes (or airspace), and the airspace may be smaller or larger than is shown in FIGS 5A-8B. For example, in certain aspects, the airspace in material 530 may comprise 50% of the volume of material 530. In other aspects, the airspace may comprise 75% of more of the material, but in other aspects, the airspace may comprise 25% or less of the material.”). One of ordinary skill in the art, furthermore, would have expected Humboldt to perform equally well with the flexible material comprising a plurality of holes which comprises 50% of the flexible material, wherein the flexible material would still perform the intended functions of stopping the ball, as well as creating a noise different from that which would be created by the ball hitting the heavy cloth material of materials 68, 78, and/or 80, thereby still allowing a determination of a “ball” (Humboldt, Col. 1, ln. 16-25; Col. 3, ln. 29-31; Col. 3, ln. 46-50; Col. 4, ln. 53-59). Therefore, it would have been an obvious matter of design choice to modify the percentage of the plurality of holes of the flexible material in Humboldt to comprise 50% of the flexible material to obtain the invention as specified in the claim.
Regarding claim 17, Humboldt further discloses wherein the netting is made of a finely meshed material, and additional material (e.g., material 68, 78, and/or 80) attached to the netting forming the flexible material of the training device (Fig. 3; Col. 3, ln. 29-31; Col. 3, ln. 39-45; Col. 5, ln. 5-8). Humboldt may not explicitly disclose wherein the plurality of holes comprises 75% or more of the flexible material. However, it would have been obvious based on the configuration of the flexible material dependent on the desired training (e.g., if just the target 68 and child player are provided).
Additionally, and/or alternatively, it would have been an obvious matter of design choice to a person of ordinary skill in the art before the effective filing date of the claimed invention to adjust the percentage of the plurality of holes to comprise 75% or more of the flexible material because Applicant has not disclosed that the plurality of holes comprising 75% or more of the flexible material provides an advantage, is used for a particular purpose, or solves a stated problem (see Specification, p. 8, “It will be appreciated that material 530 may contain any number of non-circular holes (or airspace), and the airspace may be smaller or larger than is shown in FIGS 5A-8B. For example, in certain aspects, the airspace in material 530 may comprise 50% of the volume of material 530. In other aspects, the airspace may comprise 75% of more of the material, but in other aspects, the airspace may comprise 25% or less of the material.”). One of ordinary skill in the art, furthermore, would have expected Humboldt to perform equally well with the flexible material comprising a plurality of holes which comprises 75% or more of the flexible material, wherein the flexible material would still perform the intended functions of stopping the ball, as well as creating a noise different from that which would be created by the ball hitting the heavy cloth material of materials 68, 78, and/or 80, thereby still allowing a determination of a “ball” (Humboldt, Col. 1, ln. 16-25; Col. 3, ln. 29-31; Col. 3, ln. 46-50; Col. 4, ln. 53-59). Therefore, it would have been an obvious matter of design choice to modify the percentage of the plurality of holes of the flexible material of Humboldt to comprise 75% or more of the flexible material to obtain the invention as specified in the claim.
Claims 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Humboldt in view of Farquhar, as applied to claim 11, and in further view of Zoretic (U.S. 10,668,346 B2).
Regarding claim 12, Humboldt further discloses wherein the rigid structure comprises a base portion (Figs 1-4; Col. 2, ln. 41-63, wherein frame 12 includes left and right horizontal bottom supports). However, Humboldt may not further explicitly disclose wherein the one or more fasteners comprises a sleeve engaging the base portion. Nevertheless, Zoretic, directed to a sport training device to aid with goal shooting (Col. 1, ln. 14-19), teaches this limitation (Figs. 4 & 16; Col. 4, ln. 23-47; Col. 8, ln. 34-50, wherein an arm (sleeve) attaches to a corresponding base portion (e.g., goal support 336 including a post holder 350 and base 352)). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to utilize one or more fasteners comprising a sleeve engaging a base portion, as taught by Zoretic, as an alternative attachment means in Humboldt for achieving the same, predictable result of securing the material (netting) to the structure (frame) (Humboldt, Col. 3, ln. 22-28, wherein the netting is attached to the frame in any suitable manner).
Regarding claim 13, Humboldt further discloses wherein the rigid structure comprises a frame portion (Figs 1-4; Col. 2, ln. 41-63, wherein frame 12 includes left and right vertical supports and a horizontal top cross bar). However, Humboldt may not further explicitly disclose wherein the one or more fasteners comprise a first sleeve and a second sleeve engaging a first side and a second side of the frame portion, respectively. Nevertheless, Zoretic teaches this limitation (Figs. 2 & 4-5; Col. 4, ln. 17-47, wherein arms 134 (sleeves) engage a first side (post 119) and a second side (post 120) of a frame). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to utilize one or more fasteners comprising a first sleeve and a second sleeve engaging a first side and a second side of the frame portion, respectively, as taught by Zoretic, as an alternative attachment means in Humboldt for achieving the same, predictable result of securing the material (netting) to the structure (frame) (Humboldt, Col. 3, ln. 22-28, wherein the netting is attached to the frame in any suitable manner).
Claims 9-10 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Humboldt in view of Farquhar, as applied to claim 1, and in further view of DeBolt et al. (U.S. Pub. 2013/0303312 A1) (hereinafter “DeBolt”).
Regarding claim 9, Humboldt further discloses wherein the rigid structure comprises a frame portion (Figs 1-4; Col. 2, ln. 41-63, frame 12 which includes left and right vertical supports, a horizontal top cross bar, and left and right horizontal bottom supports). However, Humboldt may not further explicitly disclose the training device comprising an attachment, wherein the attachment is supported by the frame portion and extends outward from the frame portion. Nevertheless, DeBolt, directed to a training device ([0005-0007]; [0030]), teaches this limitation (Figs. 1 & 19; [0005-0006]; [0030]; [0055], wherein the training device (comprising a frame and material attached to the frame, and which may be freestanding and capable of use without a goal) may have at least one attachment (target 1050) attached to and extending outward from the frame portion 1020 of the training device). It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to include an attachment, as taught by DeBolt, to the training device of Humboldt to provide additional targets for the user of the training device depending on the skill(s) desired to be practiced (e.g., to practice throwing a ball to a target which may be located away from the plate, such as to a standing catcher in order to purposely walk a batter, or to a field player in order to, for example, throw out a runner who is standing off of a base or attempting to steal a base).
Regarding claim 10, Humboldt as modified above teaches the claimed device with the exception of the attachment including an image portion configured to be visible from a front side and a back side of the attachment via a saturated marking of the attachment image portion. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have also applied the same type of image on the attachment(s) as on the flexible material (netting made of a fabric comprising an image portion (attached material(s) 68, 78, and/or 80)) in order to provide a more realistic target for the user, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. Moreover, providing a duplicate indicia on the attachment does not produce a new and unexpected result, and thus provides no patentable significance. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). It is noted that the instant application does not disclose any criticality for the claimed limitation (see, e.g., Specification, p. 10, “Attachments 810 may also use a non-solid material affixed with an image or may be solid (e.g., foam, plastic, or a solid material such as a high thread count nylon).”).
Regarding claim 18, claim 18 is rejected for the same reasoning as claim 10 presented above.
Regarding claim 19, claim 19 is rejected for the same reasoning as claim 10 presented above (Humboldt, Figs. 3-4; Col. 4, ln. 53-65, wherein the image portion comprises a realistic image of an opponent (e.g., an adult and/or child baseball player)).
Regarding claim 20, claim 20 is rejected for the same reasoning as claim 19 presented above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALYSSA N BRANDLEY whose telephone number is (571)272-4280. The examiner can normally be reached M-F: 8:30am-5:00pm.
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/ALYSSA N BRANDLEY/Examiner, Art Unit 3715