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 .
Drawings
The drawings are objected to because Figure 1 is of poor quality, as a result the details of referenced mechanism can’t be seen. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). 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.
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.
Claims 24-29, 33-34, 36-38, 41 are rejected under 35 U.S.C. 103 as being unpatentable over Dilz, Jr. (US 2018/0290037 A1) hereinafter (Dilz) in view of Bradley (6,435,990).
Claim 24, Dilz discloses a batting training aid, comprising:
a stand (see marked-up figures) including a base (by way of example triangular base shown in figure 7) and a brace (support column 190) supported by and extending upwardly from the base; and
a batting surface attached to an upper end of the brace via a joint, (angle adjuster 138 alternatively 194; paragraphs 0037, 0050, 0052, 0053, 0066-0067), wherein the joint permits the batting surface to rotate about a roll axis that extends along an expected direction of bat travel through a hitting zone (angle adjuster 138 or 194 are connected to a central collar 196 on the support column 190 (note: the support column 190 is not adequately shown in figures 1, 3); as shown in figure 6, the mount includes a mount collar 204 which is capable of being moved up/down or rotated around 200, when rotated, the angle adjuster along with the planar surface will also rotate, allowing the planar surface to be repositioned). Dilz discloses the claimed device with the exception of the batting plane having a “planar” surface. However, as disclosed by Bradley (planar swing path, having two parallel bars 14, 16 held apart by a pair of C-shaped arms 18, 20; the lower bar 14 is connected to the upper segment 34 of stand 12; figure 1) it is known in the art to form planar batting planes. It would have been obvious to one of ordinary skill in the art to have used such a planar batting plane for Dilz’s batting training aid given that Bradley teaches such is a desireable manner to teach a user to develop and practice a more precise and level bat swing. One would reasonably expect Bradley’s planar surface incorporated into Dilz’s device to be predictably successful because both are in the same field of endeavor and are attempting to solve the same problem of aiding in improving the batting skills of a baseball player.
Claim 25, Dilz shows a height of the planar batting surface above the base is adjustable via the base (support column 190 which is height adjustable; paragraphs 0019 and 0066).
Claim 26, Dilz as modified above discloses the claimed device with the exception of the brace comprises a four-bar linkage. It is noted that the four-bar linkage brace has been given no criticality by the applicant. Lacking any criticality, it would have been obvious to one of ordinary skill in the art to have used a four-bar linkage for Dilz’s brace. The selection of a known brace/leg on the basis of its suitability for the intended use is a matter of obvious design choice, therefore held to be within the general skill of a worker in the art to select.
Claim 27, Dilz as modified above shows the joint (angle adjuster 138) further permits the planar batting surface to rotate about a pitch axis perpendicular to the roll axis (paragraphs 0050, 0052, 0053).
Claim 28, Dilz shows a batting tee (batting tee assembly 154 having a ball rest 136) extending above an upper surface of the planar batting surface (paragraph 0040; figures 1, 7).
Claim 29, Dilz shows the batting tee (136) is removably secured to the upper surface of the planar batting surface (paragraph 0040 teaches the ball rest may be removable to facilitate replacement if the ball rest becomes worn).
Claim 33, Dilz discloses a batting training aid, comprising:
a base (by way of example triangular base shown in figure 7);
a batting surface (paragraphs 0037, 0050, 0052, 0053); and
a leg (lower portion 200 of support column 190 and connected to mount 192) having an upper end connected to the batting surface and a lower end connected to the base (figures 6 and 7 show the leg attached to the batting surface and the base), and wherein a vertical distance between the upper end of the leg and the lower end of the leg is adjustable (paragraphs 0019 and 0066), and wherein the connection between the upper end of the leg and the batting surface permits the batting surface to rotate about a roll axis that extends along an expected direction of bat travel through a hitting zone (the batting surface is connected to an upper end of the brace via a joint, (angle adjuster 194; paragraphs 0037, 0050, 0052, 0053, 0066-0067; the angle adjuster 194 is connected to a central collar 196 on the support column 190 that pivotally couples an upper portion 198 of mount 192 to the connecting member 162 of batting tee assembly 154; as shown in figure 6, the mount includes a mount collar 204 which is capable of being moved up/down or rotated on support column 190, when rotated, the angle adjuster along with the planar surface will also rotate, allowing the planar surface to be repositioned). Dilz discloses the claimed device with the exception of the batting plane having a “planar” surface. However, as disclosed by Bradley (planar swing path, having two parallel bars 14, 16 held apart by a pair of C-shaped arms 18, 20; the lower bar 14 is connected to the upper segment 34 of stand 12; figure 1) it is known in the art to form planar batting planes. It would have been obvious to one of ordinary skill in the art to have used such a planar batting plane for Dilz’s batting training aid given that Bradley teaches such is a desireable manner to teach a user to develop and practice a more precise and level bat swing. One would reasonably expect Bradley’s planar surface incorporated into Dilz’s device to be predictably successful because both are in the same field of endeavor and are attempting to solve the same problem of aiding in improving the batting skills of a baseball player.
Claim 34, Dilz as modified above shows a batting tee coupled (batting tee assembly 154 having a ball rest 136) to the planar batting surface (paragraph 0040).
Claim 36, Dilz shows the batting tee (ball rest 136) is capable of being rotatably coupled to the planar batting surface such that the batting tee can rotate at least 180 degrees about an axis that extends perpendicularly upward from the planar batting surface (the ball rest 136 is removably attached to the batting surface and it is therefore capable of being rotated 360 degrees; paragraph 0066, 0067).
Claim 37, Dilz as modified above shows the connection between the upper end of the leg (200) and the planar batting surface permits the planar batting surface to rotate about at least one axis in addition to the roll axis (paragraphs 0050, 0052-0053, 0055 and alternatively 0066-0067).
Claim 38, Dilz shows the at least one axis in addition to the roll axis comprises a pitch axis that extends perpendicular to the roll axis (paragraphs 0050, 0052, 0053, 0055).
Claim 41, Dilz shows a batting training aid, comprising:
a base (by way of example triangular base shown in figure 7);
a batting surface (paragraphs 0037, 0050, 0052, 0053); and
a leg (lower portion 200 of mount 192) having an upper end connected to the planar batting surface via a joint (angle adjuster 138; paragraphs 0037, 0050, 0052, 0053), and a lower end connected to the base, wherein a vertical distance between the upper end of the leg and the lower end of the leg is adjustable (paragraphs 0019 and 0066), and wherein the joint permits the planar batting surface to rotate about a roll axis that extends along an expected direction of bat travel through a hitting zone and to be securely positioned in a plurality of roll angles (the batting surface is connected to an upper end of the brace via a joint, (angle adjuster 194; paragraphs 0037, 0050, 0052, 0053, 0066-0067; the angle adjuster 194 is connected to a central collar 196 on the support column 190 that pivotally couples an upper portion 198 of mount 192 to the connecting member 162 of batting tee assembly 154; as shown in figure 6, the mount includes a mount collar 204 which is capable of being moved up/down or rotated on support column 190, when rotated, the angle adjuster along with the planar surface will also rotate, allowing the planar surface to be repositioned).
Claims 30, 35 are rejected under 35 U.S.C. 103 as being unpatentable over the prior art of record as applied to claim 28 above, and further in view of Lincoln (US2009/0029803 A1).
Claim 30, Dilz alone and as modified in view of Bradley discloses the claimed device with the exception of the batting tee comprises an asymmetrical cup-shaped topper. However, as disclosed by Lincoln (paragraph 0013; ball receiving portion 20a having an angled cut-away and beveled cut-away; figure 1) it is known in the art for a batting tee to include an asymmetrical ball holder or cup. It would have been obvious to one of ordinary skill in the art to have used such a ball holder for Dilz’s batting training aid given that Lincoln teaches such is an alternative shape for a ball holder. One would reasonably expect the Lincoln’s ball holder incorporated into Dilz’s device to be predictably successful because both are in the same field of endeavor and are attempting to solve the same problem of aiding in improving the batting skills of a baseball player.
Claim 35, Dilz discloses the claimed device with the exception of the batting tee comprises an asymmetrical cup-shaped topper. However, as disclosed by Lincoln (paragraph 0013; ball receiving portion 20a having an angled cut-away and beveled cut-away; figure 1) it is known in the art for a batting tee to include an asymmetrical ball holder or cup. It would have been obvious to one of ordinary skill in the art to have used such a ball holder for Dilz’s batting training aid given that Lincoln teaches such is an alternative shape for a ball holder. One would reasonably expect the Lincoln’s ball holder incorporated into Dilz’s device to be predictably successful because both are in the same field of endeavor and are attempting to solve the same problem of aiding in improving the batting skills of a baseball player.
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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 24-29, 31-43 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-7 of U.S. Patent No. 11,957,968 (‘968). Although the claims at issue are not identical, they are not patentably distinct from each other because claims 24-29, 31-43 of the present application are directed to the same invention. Both discloses a batting training aid having a stand, a base, a brace, a height adjustable planar batting surface attached via a joint, wherein the joint permits rotation about a pitch axis and/or a roll axis. The training aid further including a batting tee removably secured to the planar batting surface and a guide bar positioned above and parallel to the planar batting surface, wherein the guide bar can rotate about an axis extending vertically between the base and the planar batting surface. Therefore, claims 24-29, 31-43 read on the claims 1-7 of ‘968.
Response to Arguments
Applicant's arguments filed 04 March have been fully considered but they are not persuasive. Applicant’s comments with regards to the IDS is noted. With regards to the drawings, as noted above figure 1 is of poor quality, as a result the details of referenced mechanism can’t be seen. With regards to the 112 2nd or (b) rejection, the amendment to claim 36 overcomes the rejection. With regards to the Double Patenting rejection, applicant’s remarks are noted, the rejection is maintained until the terminal disclaimer is submitted.
Lastly, with regards to 103 rejection of claims over Dilz in view of Bradley and further in view of Lincoln, the following remarks are presented: applicant asserts:
Dilz's Figure 3, reproduced below, is instructive. In Dilz's Figure 3, the "expected direction of bat travel" is from right to left (in the direction of large arrow 150). The arrows adjacent angle adjuster 138, however, show rotation about an axis perpendicular to the page (e.g., to tilt the left and right ends of assembly 130 up and down on the page). Thus, the axis of rotation in Dilz extends perpendicular to the "expected direction of bat travel," not "along" that direction as claimed.
The examiner respectfully notes that both figure 3 and a portion of figure 7 was reproduced and included in the non-final office action, since the support column (which applicant refers to as a brace) was not shown in figure 3. The examiner was and still is of the opinion that Dilz’s specification and drawings adequately show the assembly being rotatable. It appears the examiner assumed incorrectly, since it appears that such is not clear to the applicant. The following remarks are made with regards to the Dilz device being rotatable. As shown in figure 7 and in more detail in figure 6, the angle adjuster 194 is connected to a central collar 196 on the support column 190 which pivotally couples an upper portion 198 of mount 192 to the connecting member 162 of batting tee assembly 154. The mount includes a mount collar 204 which is capable of being moved up/down or rotated with respect to the support column 190, when the mount collar 204 is rotated, the angle adjuster along with the planar surface will also rotate around lower portion 200 , allowing the planar surface to be repositioned.
It is the examiner’s position that the Dilz reference as modified in view of Bradley and Licoln read on the pending claims.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MITRA ARYANPOUR whose telephone number is (571)272-4405. The examiner can normally be reached on Mon, Thur, Fri 8:00am to 4:00pm, Wed 8:00-2:00
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eugene Kim can be reached on 571-272-4463. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MITRA ARYANPOUR/Primary Examiner, Art Unit 3711
/ma/
16 April 2026
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