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 .
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.
Priority
Acknowledgment is made that this application is a continuation-in-part of parent application 17/409,362 (USPN 12,379,306).
US National Stage of PCT
Acknowledgment is made that this application is the US national phase of international application PCT/US2022/041242 filed 08/23/2022 which designated the U.S.
Information Disclosure Statement
While it is not necessary for the Applicant to submit an information disclosure statement that lists the prior art reference(s) previously cited by the Examiner in the parent application for the latter filed continuing application claiming the benefit under 35 U.S.C. 120 to said parent application (other than an international application that designated the U.S.), the information will not be printed on any patent issuing from the continuing application unless cited by the Applicant on an IDS or by the Examiner on a PTO-892 for the present application. See MPEP § 609.02. While the Examiner has reviewed the reference(s) of the parent application(s) (17/409,362), the Examiner has not verified that all of the reference(s) listed in the parent application(s) appear on the present IDS and/or PTO-892.
The information disclosure statement(s) (IDS) submitted on 02/23/2024 and 03/11/2024 is/are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement(s) is/are being considered by the Examiner.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5), and correspondingly for PCT 11.13(l), because they include the following reference character(s) not mentioned in the description: “5” (fig. 9)
The drawings are objected to because unlabeled non-descriptive representations are impermissible under 37 CFR 1.83(a) which states (bold for emphasis):
(a) The drawing in a nonprovisional application must show every feature of the invention specified in the claims. However, conventional features disclosed in the description and claims, where their detailed illustration is not essential for a proper understanding of the invention, should be illustrated in the drawing in the form of a graphical drawing symbol or a labeled representation (e.g., a labeled rectangular box). In addition, tables that are included in the specification and sequences that are included in sequence listings should not be duplicated in the drawings.
The drawings are correspondingly objected to for failing to comply with PCT Rule 11 as catchwords are indispensable to the understanding of the unlabeled non-descriptive representations, wherein PCT Rule 11.11 Words in Drawings states (bold for emphasis):
(a) The drawings shall not contain text matter, except a single word or words, when absolutely indispensable, such as "water," "steam," "open," "closed," "section on AB," and, in the case of electric circuits and block schematic or flow sheet diagrams, a few short catchwords indispensable for understanding.
(b) Any words used shall be so placed that, if translated, they may be pasted over without interfering with any lines of the drawings.
Non-descriptive representation(s) “90” of figs. 7 & 10-11 and “10” & “110” of fig. 21 and “224” of fig. 23B need (an) appropriate legend(s) in the form of descriptive text label(s) in addition to any reference character(s) already present. Empty or not labeled rectangular boxes and non-descriptive representations of features are not descriptive, and therefore incomplete. The Examiner emphasizes that the requested text matter is indispensable for proper understanding. The descriptive text labels should contain as few words as possible. See also 37 CFR 1.84(n) (conventional symbols), 1.84(o) (required descriptive legends), & 1.84(p) (standards for the text labels), MPEP 608.02(b)(II)(¶ 6.22) (“descriptive text label”), and MPEP Appendix T Rule 11.11. The Appropriate Correction is required.
The drawings (figs. 20 & 25) are objected to under 37 CFR 1.84(l), and corresponding PCT rule 11.13(a), for being unsatisfactorily reproducible. All drawings must be made by a process which will give them satisfactory reproduction characteristics. Every line, number, and letter must be durable, clean, black (except for color drawings), sufficiently dense and dark, and uniformly thick and well-defined. The weight of all lines and letters must be heavy enough to permit adequate reproduction. This requirement applies to all lines however fine, to shading, and to lines representing cut surfaces in sectional views. Lines and strokes of different thicknesses may be used in the same drawing where different thicknesses have a different meaning.
The drawings are objected to because of:
“1/26” in the middle of fig. 2 (appears to be an accidental copy/paste of page numbering) which is unnecessary, misplaced, etc.;
“90” in fig. 7 does not appear to be pointing at a position sensor (appears to be pointing at the housing); and
“90” in fig. 10 similarly does not appear to be pointing at a position sensor (appears to be pointing at the cart and the housing).
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.
Specification
Applicant is reminded of the proper content, language, and/or format for an abstract of the disclosure:
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
Additionally the Examiner notes that 37 CFR 1.438 is summarized as:
Preferably 50-150 words. Should contain:
(A) Indication of field of invention.
(B) Clear indication of the technical problem.
(C) Summary of invention’s solution of the problem.
(D) Principal use or uses of the invention.
(E) Reference numbers of the main technical features placed between parentheses.
(F) Where applicable, chemical formula which best characterizes the invention.
Should not contain:
(A) Superfluous language.
(B) Legal phraseology such as “said” and “means.”
(C) Statements of alleged merit or speculative application.
(D) Prohibited items as defined in PCT Rule 9.
The abstract of the disclosure is objected to because:
superfluous language that can be implied (“disclosed herein”).
Appropriate correction is required. See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
Claim Objections
Claim(s) 16-21 is/are objected to because of the following informalities:
As to Method claim 16, which depends on Apparatus claim 8,
and likewise for further dependent claims 17-20, the Examiner objects to the inconsistent nomenclature changes between “footform” and “foot”.
Dependent claim(s) of objected to claim(s) is/are likewise objected to.
Appropriate correction is required.
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.
MPEP 804:
As filing a terminal disclaimer, or filing a showing that the claims subject to the rejection are patentably distinct from the reference application’s claims, is necessary for further consideration of the rejection of the claims, such a filing should not be held in abeyance. Only objections or requirements as to form not necessary for further consideration of the claims may be held in abeyance until allowable subject matter is indicated.
Instant 8-21 claim(s) is/are rejected on the ground of nonstatutory double patenting as being unpatentable over reference patented claim(s) 1-14 of U.S. Patent No. 12,379,306.
Although the claims at issue are not identical, they are not patentably distinct from each other because of the reasons put forth in the table below:
One-Way Double Patenting Analysis Table
18/686,197
(instant)
USPN 12,379,306
(reference)
Obviousness Analysis of instant claim over reference claim
8
1
A surface performance testing apparatus, the apparatus comprising: a cart slidably affixed to a rail; an actuator linked to the cart; and a footform affixed to the cart, wherein the footform is configured to mimic a human foot, animal hoof or animal foot, wherein the cart, rail and actuator are arranged to move the cart and attached footform at an angle relative to a substantially horizontal surface to be tested, whereby the footform contacts the surface to be tested at a desired contact angle, wherein the cart, rail and actuator are arranged within a housing, wherein an angle or position of the housing is adjustable relative to the substantially horizontal surface to be tested by way of one or more adjustable elements threadingly engaged to the housing (A surface performance testing apparatus, the apparatus comprising: a cart slidably affixed to a rail; an actuator linked to the cart; and a footform affixed to the cart, wherein the footform is configured to mimic a human foot, animal hoof or animal foot, wherein the cart, rail and actuator are arranged to move the cart and attached footform at an angle relative to a substantially horizontal surface to be tested, whereby the footform contacts the surface to be tested at a selected contact angle, wherein the cart, rail and actuator are arranged within a housing, wherein an angle or position of the housing is adjustable relative to the substantially horizontal surface to be tested by way of one or more adjustable elements threadingly engaged to the housing).
Indistinctly recites most limitations, differences being merely nominal nomenclatural differences or grammatical variations not amounting to patentable distinction. The Examiner notes in particular that “desired” and “selected” appear to be obvious nomenclatural differences, wherein it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select the desired.
9
2
The surface performance testing apparatus of claim 8, further comprising a shoe, horseshoe or other footwear affixed to the footform (The surface performance testing apparatus of claim 1, further comprising a shoe, horseshoe or other footwear affixed to the footform).
10
3
The surface performance testing apparatus of claim 8, wherein the apparatus is configured to test any footwear, shoe, athletic cleat or boot against a surface (The surface performance testing apparatus of claim 1, wherein the apparatus is configured to test any footwear, shoe, athletic cleat or boot against a surface).
11
4
The surface performance testing apparatus of claim 8, wherein the apparatus is configured to test a human foot, animal foot or animal hoof against a surface (The surface performance testing apparatus of claim 1, wherein the apparatus is configured to test a human foot, animal foot or animal hoof against a surface).
12
5
The surface performance testing apparatus of claim 10, wherein the surface comprises a natural or synthetic surface selected from the group consisting of an artificial turf surface, a natural turf surface, natural and synthetic equestrian performance surfaces, a track surface, a wooden court surface, a synthetic court surface, a clay court surface, a rolled clay court surface, a hybrid surface, a natural land surface, a floor, and/or a work surface (The surface performance testing apparatus of claim 3 or 4, wherein the surface comprises a natural or synthetic surface selected from the group consisting of an artificial turf surface, a natural turf surface, natural and synthetic equestrian performance surfaces, a track surface, a wooden court surface, a synthetic court surface, a clay court surface, a rolled clay court surface, a hybrid surface, a natural land surface, a floor, and/or a work surface).
13
6
The surface performance testing apparatus of claim 8, further comprising a three degree of freedom sensor or three component force sensor (The surface performance testing apparatus of claim 1, further comprising a three degree of freedom sensor or three component force sensor).
14
7
The surface performance testing apparatus of claim 8, further comprising one or more wheels for transportability (The surface performance testing apparatus of claim 1, further comprising one or more wheels for transportability).
15
8
The surface performance testing apparatus of claim 8, further comprising a standing platform (The surface performance testing apparatus of claim 1, further comprising a standing platform).
16
9
A method of testing a foot or footwear, the method comprising: providing a surface performance testing apparatus of claim 8; applying the apparatus to a surface against which the foot or footwear is to be tested; and actuating the actuator to cause the foot or footwear to contact the surface to be tested (A method of testing the footform or footwear, the method comprising: providing a surface performance testing apparatus of claim 8; applying the apparatus to a surface against which the footform or footwear is to be tested; and actuating the actuator to cause the footform or footwear to contact the surface to be tested).
Indistinctly recites most limitations, differences being merely nominal nomenclatural differences or grammatical variations not amounting to patentable distinction.
As an aside, the Examiner notes for the Attorney that “of claim 8” in the reference patent appears to have not been re-numbered.
17
10
The method of claim 16, wherein the footwear comprises a shoe, athletic cleat or boot affixed to the footform and for which testing against a surface is desired (The method of claim 9, wherein the footwear comprises a shoe, athletic cleat, horseshoe, or boot affixed to the footform and for which testing against a surface is selected).
Indistinctly recites most limitations, differences being merely nominal nomenclatural differences or grammatical variations not amounting to patentable distinction. The Examiner notes in particular that “desired” and “selected” appear to be obvious nomenclatural differences, wherein it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select the desired.
18
11
The method of claim 16, wherein the foot comprises a human foot, animal foot or animal hoof, or device mimicking the same, for which testing against a surface is desired (The method of claim 9, wherein the footform mimics a human foot, animal foot or animal hoof for which testing against a surface is selected).
Indistinctly recites most limitations, differences being merely nominal nomenclatural differences or grammatical variations not amounting to patentable distinction.
19
14
The method of claim 16, wherein the foot comprises a horse hoof, or device mimicking the same, and the surface comprises a track or equestrian riding surface (The method of claim 9, wherein the footform mimics a horse hoof and the surface comprises a track or equestrian riding surface)
Indistinctly recites most limitations, differences being merely nominal nomenclatural differences or grammatical variations not amounting to patentable distinction.
20
12
The method of claim 16, further comprising measuring one or more forces generated during at least a portion of the contact between the foot or footwear and the surface (The method of claim 9, further comprising measuring one or more forces generated during at least a portion of the contact between the foot footform or footwear and the surface).
21
13
The method of claim 20, further comprising obtaining surface performance test information acquired from the measurement of the one or more forces generated (The method of claim 12, further comprising obtaining surface performance test information acquired from the measurement of the one or more forces generated).
The Double Patenting Rejections will not be held in abeyance. See MPEP § 804 & 714.02.
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.
Claim(s) 8-21 is/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.
Regarding claims 8 and 17-18,
the term “desired" is a relative term 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 and therefore said relative term renders the claim indefinite. The Examiner suggests substitution of “desired” with a less subjected term (e.g., “selected”; Examiner notes this to be the term previously chosen by Applicant for USPN 12,379,306). See aforementioned parent application/patent history for additional analysis and discussion between Examiner and Applicant on this term.
Dependent claim(s) of rejected claim(s) is/are likewise rejected.
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.
Claim(s) 1-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over newly cited Cline et al (US 20130055797 A1; hereafter “Cline”) in view of Applicant cited Yngve (US 20120297889 A1; hereafter “Yngve”).
Regarding independent claim 1,
Cline teaches a method for generating a graphical representation (see exemplary figs. 7, 8, 14, 15) associated with surface (ground surface) performance (broadly reasonable to interpret as performance; additional obviousness analysis provided) test information (Title “EVALUATION OF GROUND SURFACE HARDNESS”; Abstract “Evaluating ground surface hardness for a site involves using a mobile data collection device to automatically drop an object including an accelerometer onto a ground surface at sample locations spaced at regular intervals within the site”; [0006] “generating a value representative of ground surface hardness for each of the sample locations”; [0030] “The site typically includes a playing surface that is configured for the playing of a sport or other activity. An example of a site is a playing field, such as a field (e.g., a football field, a soccer field, a baseball field), a track (e.g., a horse track, a running track), a golf course (e.g., the putting green, fairway, rough, or tee box)”; [0031] “Turf includes both natural turfgrass as well as synthetic turf systems”; [0033] “Examples of ground surface hardness measurement devices are illustrated and described in more detail with reference to FIGS. 2-3”), the method comprising:
at a computing platform (fig. 6 comprising computing device 200) ([0073] “FIG. 6 is a schematic block diagram illustrating an example computing device 200 of an example surface hardness evaluation system. In addition, the example computing device 200 is also an example of a computing device that can be used to perform one or more of the methods, operations, computations, or processes discussed herein by other computing devices”) including a processor (fig. 6, processing device 202) and a memory (fig. 6, memory 204)([0075] “Computing device 200 includes, in some embodiments, at least one processing device 202 and memory 204. A variety of processing devices 202 are available from a variety of manufacturers, for example, Intel or Advanced Micro Devices. In some embodiments, the processing device 202 is configured to perform one or more methods or operations as defined by instructions stored in a memory device”; [0076] “Computing device 200 also includes, in some embodiments, at least one memory device 204. Examples of memory devices 204 include read-only memory 208 and random access memory 210. Basic input/output system 212, containing the basic routines that act to transfer information within computing device 200, such as during start up, is typically stored in read-only memory 208. Memory device 204 can be a part of processing device 202 or can be separate from processing device 202”; [0067] “a table 160 is stored in a memory device of computing device 138 of data collection vehicle 132. In some embodiments, after the data points 142 are collected, the data is transferred from computing device 138 to a computer storage medium, such as a CD or flash drive, or to another computing device, such as across a network”):
receiving configuration information associated with a surface (ground surface) performance test, wherein receiving the configuration information includes receiving, via a user interface (fig. 6, interface 240 with input devices 230), test location information (user provided input; at once so envisaged that user inputs the non-automated information through the user interface; additional obviousness provided) for identifying at least one user defined location (site) of a surface (ground surface) to be tested in the surface (ground surface) performance test ([0035] “collect additional data. Examples of other data include soil moisture data, location data (such as global positioning system data), irrigation system location data, soil penetration data, spectrometer data, or other data identifying one or more characteristics of, or related to, the ground surface”; [0063] “one or more additional pieces of data are also collected, such as GPS coordinates, soil moisture measurements, soil penetration measurements, and any other data that can be measured or detected”; [0034] “paths for collecting ground surface hardness data. For example, in some embodiments, the data points are collected along approximately a 10' by 10' grid, although other embodiments utilize other data collection dimensions and arrangements”; [0066] “the spacing and locations of the one or more paths P2 is determined by characteristics of the site S1”; [0081] “user provides inputs to the computing device 200 through one or more input devices 230. Examples of input devices 230 include keyboard 232, mouse 234, touchpad 236, and touch sensitive display 238. Other embodiments include other input devices 230”; [0091] “GPS coordinates”; [0096] “Upon display, a user can evaluate the data points, such as to identify particular regions of the site S1”; [0092] “if GPS coordinates are not available, or if the map is not associated with GPS coordinates, a position of a first point can be visually identified on the map, and subsequent points can be determined”);
obtaining surface (ground surface) performance test information acquired using at least one surface (ground surface) performance test apparatus (ground surface hardness measurement devices; see exemplary figs. 2-3); and
generating at least one graphical representation indicating the surface (ground surface) performance test information associated with the at least one user defined location ([0018] “map display graphically depicting collected data to permit visual evaluation of ground surface hardness values”; [0019] “map display graphically depicting the collected data”; [0025] “example map display for another exemplary site, illustrating collected and interpolated hardness data”; [0026] “example map display illustrating the standard deviations of the hardness data”; [0036] “data processing is performed to interpolate the data, and to plot the data on a map of the site to permit visual inspection and evaluation of the ground hardness data”; [0098] “graphically depicting the collected data”; [0101] “using colors associated with ranges”; [0103] “surface hardness evaluation system compares the data points to other data as part of the evaluation. For example, the locations of the sprinkler heads can be used to look for correlations between the locations of sprinkler heads and the ground surface hardness”).
While it is the Examiner's position that Cline reasonably teaches a broad interpretation of surface performance testing by a surface performance test apparatus, the Examiner acknowledges item 1): structural differences of the instant disclosure’s surface performance test apparatus and Cline. Similarly, while Cline reasonably suggests to an ordinary artisan that a user is using the input devices & interface to input information pertaining to the location, the Examiner nevertheless acknowledges item 2): that Cline does not explicitly state the specifics of the user input information.
Regarding item 1), Yngve teaches a method for generating a graphical representation associated with surface performance test information from using at least one surface performance test apparatus (turf testing apparatus) (Title “TURF TESTING APPARATUS AND METHODS”; [0005] “apparatuses and methods for testing turf or other surfaces and footwear or other structures that interact with such surfaces, including evaluating forces, such as, but not limited to, friction and traction forces acting at the footwear/turf interface”; [0008] “study the force environments during impact and at other times during the shoe/turf surface interface, and may allow one to reach conclusions about the suitability of a particular turf surface or shoe, or to compare and contrast a turf surface and/or shoe with other turf surfaces and shoes in order to test and/or improve the same”; [0009]-[0014]; [0031] “FIGS. 4 and 5 show an embodiment of the turf testing apparatus 10 as illustrated in FIG. 1”; [0032] “FIG. 6 illustrates various components associated with a monitoring and control system 60 associated with the assembly 10”; [0014] “FIG. 6 is another perspective view of the apparatus shown in FIG. 4”; [0033] “turf surfaces, including various types of flooring, dirt surfaces, gravel surfaces, hard surfaces, soft surfaces or other surfaces, including surfaces in orientations other than horizontal surfaces, such as vertical and inclined surfaces”), the at least one surface performance test apparatus (turf testing apparatus) comprising: a cart (fig. 6, carriage 26) slidably affixed to a rail (fig. 6, track 36) ([0024]-[0026]); one or more wheels (fig. 6, wheels 64) for transportability ([0032] “apparatus 10 has an external framework 62 that rests on wheels 64, allowing the movement of the apparatus 10 with respect to the turf 14”; [0025] “mobility of the entire apparatus 10 may be facilitated by deployable wheels or other suitable structure or functionality associated with the external framework”); an actuator (actuator comprising first & second; only actuator 22 is labeled) linked to the cart (fig. 6, carriage 26) ([0026] “Carriage 26 may be driven along the elongated track 36 (along substantially horizontal axis 34) by another actuator”; [0019]-[0022], [0027]-[0028], [0031]); and a footform (fig. 6, foot-form/shoe 12; Examiner notes foot-form/shoe is not labeled in fig. 6, see figs. 1-3 for labeling) affixed to the cart (fig. 6, carriage 26) ([0016] “although not shown in the Figures, the shoe 12 is mounted to a foot-form (for instance, a conventional shoe tree) allowing the shoe 12 to be securely associated with the apparatus 10, while also allowing the shoe 12 to be removed and interchanged with other footwear for testing”), wherein the footform (foot-form/shoe 12) is configured to mimic a human foot, animal hoof or animal foot ([0012] “Shoe 12 may be any type of footwear (including cleated and non-cleated footwear) or other construct for investigation (including, without limitation, a construct simulating a bare foot, an animal paw or hoof, or some other type of construct for investigation”), wherein the cart (fig. 6, carriage 26), rail (fig. 6, track 36) and actuator (actuator comprising first & second) are arranged to move the cart (fig. 6, carriage 26) and attached footform (foot-form/shoe 12) at an angle relative to a substantially horizontal surface (fig. 6, surface 14) to be tested, whereby the footform (foot-form/shoe 12) contacts the surface (fig. 6, surface 14) to be tested at a desired contact angle ([0022] “shoe sub-assembly 24 will cause it to be initially biased at an approximately 11 degree angle. In some embodiments, the initial angle of shoe 12 may be adjustable, or may be pre-set for other angulations”; [0023] “particular angular orientation”; [0027] “at an angle (when viewed from the side) of approximately 11 degrees to the turf surface 14”; [0030] “use of a wide variety of footwear, at different angles of impaction (in angular and normal planes to the turf surface), and at various simulated body weights and running speeds”), the method comprising:
at a computing platform (fig. 6, control system 60) ([0032] “combination of computer and manual controls”) including a processor (computer) and a memory (at once so envisaged; memory of computer):
receiving configuration information associated with a surface performance test (Abstract “testing turf or other surfaces),
wherein receiving the configuration information includes receiving, via a user interface (manual controls cooperating with computer system), manual input;
obtaining surface performance test information acquired using the at least one surface performance test apparatus (turf testing apparatus) ([0008] “study the force environments during impact and at other times during the shoe/turf surface interface, and may allow one to reach conclusions about the suitability of a particular turf surface or shoe, or to compare and contrast a turf surface and/or shoe with other turf surfaces and shoes in order to test and/or improve the same”); and
generating at least one graphical representation indicating the surface performance test information associated with the test location ([0029], [0032] “The force readings may be recorded, for instance, as a function of force vs. distance traveled (e.g. horizontal position of the carriage 26), as a function of force vs. time, or in other manners. Data reflecting the force readings may be output as tables, charts, or in other manners”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Yngve’s surface performance test apparatus and associated surface performance testing with Cline’s method and associated structure for generating a graphical representation associated with a surface test apparatus, thereby providing the expected advantages of evaluating forces—such as friction and traction forces—acting at the footwear/turf interface which allows one to reach conclusions about the suitability of a particular turf surface or shoe, or to compare and contrast a turf surface and/or shoe with other turf surfaces and shoes in order to test and/or improve the same. Complementarily, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Cline’s grid pattern measurement and graphical representation of the surface testing with Yngve’s surface performance test apparatus and associated method for the expected purpose of mapping out collected measurements and assisting the user in visualizing the properties of the surface being tested. The Examiner additionally notes that the Courts have ruled an obviousness analysis based on the collective teachings of the references does not depend on the order in which the references are listed in the statement of the rejection. See In re Bush, 296 F.2d 491, 496 (CCPA 1961): “In a case of this type where a rejection is predicated on two references each containing pertinent disclosure which has been pointed out to the applicant, we deem it to be of no significance, but merely a matter of exposition, that the rejection is stated to be on A in view of B instead of on B in view of A, or to term one reference primary and the other secondary.”
Regarding item 2):
It has been held that broadly providing a mechanical or automatic means to replace manual activity which has accomplished the same result involves only routine skill in the art, see MPEP § 2144.04(III) and In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958). The Examiner notes in the present case, that the Examiner is putting forth a similar assessment that only routine skill in the art is required to manually input data where it is known to automate the input of data, especially where the prior art teaches a means for manual input of data.
Furthermore, choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success is obvious to try, see MPEP § 2143(I)(E). The Examiner also notes that MPEP § 2145(III)(X)(B) states “An “obvious to try” rationale may support a conclusion that a claim would have been obvious where one skilled in the art is choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success. “[A] person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 538, 421,82 USPQ2d 1385, 1397 (2007).” In the present case, it is the Examiner’s position that manually entering test location information (user provided input) into Cline’s user interface (fig. 6, interface 240 with input devices 230) merely requires common sense and ordinary skill—especially when GPS coordinates are unavailable by automated means or if a map is not already associated with the coordinates—thereby providing useful information such as the coordinates, type of site, spacing, dimensions, paths, etc., as well as any additional data (ETC.) to associate within the tables of information being stored, including additional data of interest in Yngve such as particular foot/footwear utilized in surface performance testing.
In view of the above, either one of ordinary skill in the art at the time the invention was effectively filed would at once envisaged that Cline already reasonably teaches inputting test location information (user provided input) into Cline’s user interface (fig. 6, interface 240 with input devices 230), or nevertheless, or in the alternative, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to so have the user manually input data into Cline’s user interface for the aforementioned reasons further including for supplementing any missing (or merely additionally useful) information, for correcting any information that is found by the user to be in error, and/or for saving on hardware costs, software costs, &/or reducing complexity.
Regarding independent claim 6,
Cline teaches a system for generating a graphical representation associated with surface (ground surface) performance (broadly reasonable to interpret as performance; additional obviousness analysis provided) test information (Title “EVALUATION OF GROUND SURFACE HARDNESS”; Abstract “Evaluating ground surface hardness for a site involves using a mobile data collection device to automatically drop an object including an accelerometer onto a ground surface at sample locations spaced at regular intervals within the site”; [0006] “generating a value representative of ground surface hardness for each of the sample locations”; [0030] “The site typically includes a playing surface that is configured for the playing of a sport or other activity. An example of a site is a playing field, such as a field (e.g., a football field, a soccer field, a baseball field), a track (e.g., a horse track, a running track), a golf course (e.g., the putting green, fairway, rough, or tee box)”; [0031] “Turf includes both natural turfgrass as well as synthetic turf systems”; [0033] “Examples of ground surface hardness measurement devices are illustrated and described in more detail with reference to FIGS. 2-3”), the system comprising:
a computing platform (fig. 6, control system 60) ([0073] “FIG. 6 is a schematic block diagram illustrating an example computing device 200 of an example surface hardness evaluation system. In addition, the example computing device 200 is also an example of a computing device that can be used to perform one or more of the methods, operations, computations, or processes discussed herein by other computing devices”) comprising a processor (fig. 6, processing device 202) and a memory (fig. 6, memory 204) ([0075] “Computing device 200 includes, in some embodiments, at least one processing device 202 and memory 204. A variety of processing devices 202 are available from a variety of manufacturers, for example, Intel or Advanced Micro Devices. In some embodiments, the processing device 202 is configured to perform one or more methods or operations as defined by instructions stored in a memory device”; [0076] “Computing device 200 also includes, in some embodiments, at least one memory device 204. Examples of memory devices 204 include read-only memory 208 and random access memory 210. Basic input/output system 212, containing the basic routines that act to transfer information within computing device 200, such as during start up, is typically stored in read-only memory 208. Memory device 204 can be a part of processing device 202 or can be separate from processing device 202”; [0067] “a table 160 is stored in a memory device of computing device 138 of data collection vehicle 132. In some embodiments, after the data points 142 are collected, the data is transferred from computing device 138 to a computer storage medium, such as a CD or flash drive, or to another computing device, such as across a network”),
receiving configuration information associated with a surface (ground surface) performance test, wherein receiving the configuration information includes receiving, via a user interface (fig. 6, interface 240 with input devices 230), test location information (user provided input; at once so envisaged that user inputs the non-automated information through the user interface; additional obviousness provided) for identifying at least one user defined location (site) of a surface (ground surface) to be tested in the surface (ground surface) performance test ([0035] “collect additional data. Examples of other data include soil moisture data, location data (such as global positioning system data), irrigation system location data, soil penetration data, spectrometer data, or other data identifying one or more characteristics of, or related to, the ground surface”; [0063] “one or more additional pieces of data are also collected, such as GPS coordinates, soil moisture measurements, soil penetration measurements, and any other data that can be measured or detected”; [0034] “paths for collecting ground surface hardness data. For example, in some embodiments, the data points are collected along approximately a 10' by 10' grid, although other embodiments utilize other data collection dimensions and arrangements”; [0066] “the spacing and locations of the one or more paths P2 is determined by characteristics of the site S1”; [0081] “user provides inputs to the computing device 200 through one or more input devices 230. Examples of input devices 230 include keyboard 232, mouse 234, touchpad 236, and touch sensitive display 238. Other embodiments include other input devices 230”; [0091] “GPS coordinates”; [0096] “Upon display, a user can evaluate the data points, such as to identify particular regions of the site S1”; [0092] “if GPS coordinates are not available, or if the map is not associated with GPS coordinates, a position of a first point can be visually identified on the map, and subsequent points can be determined”);
obtaining surface (ground surface) performance test information acquired using at least one surface (ground surface) performance test apparatus (ground surface hardness measurement devices; see exemplary figs. 2-3); and
generating at least one graphical representation indicating the surface (ground surface) performance test information associated with the at least one user defined location ([0018] “map display graphically depicting collected data to permit visual evaluation of ground surface hardness values”; [0019] “map display graphically depicting the collected data”; [0025] “example map display for another exemplary site, illustrating collected and interpolated hardness data”; [0026] “example map display illustrating the standard deviations of the hardness data”; [0036] “data processing is performed to interpolate the data, and to plot the data on a map of the site to permit visual inspection and evaluation of the ground hardness data”; [0098] “graphically depicting the collected data”; [0101] “using colors associated with ranges”; [0103] “surface hardness evaluation system compares the data points to other data as part of the evaluation. For example, the locations of the sprinkler heads can be used to look for correlations between the locations of sprinkler heads and the ground surface hardness”).
While it is the Examiner's position that Cline reasonably teaches a broad interpretation of surface performance testing by a surface performance test apparatus, the Examiner acknowledges item 1): structural differences of the instant disclosure’s surface performance test apparatus and Cline. Similarly, while Cline reasonably suggests to an ordinary artisan that a user is using the input devices & interface to input information pertaining to the location, the Examiner nevertheless acknowledges item 2): that Cline does not explicitly state the specifics of the user input information.
Regarding item 1), Yngve teaches a system for generating a graphical representation associated with surface performance test information from using at least one surface performance test apparatus (turf testing apparatus) (Title “TURF TESTING APPARATUS AND METHODS”; [0005] “apparatuses and methods for testing turf or other surfaces and footwear or other structures that interact with such surfaces, including evaluating forces, such as, but not limited to, friction and traction forces acting at the footwear/turf interface”; [0008] “study the force environments during impact and at other times during the shoe/turf surface interface, and may allow one to reach conclusions about the suitability of a particular turf surface or shoe, or to compare and contrast a turf surface and/or shoe with other turf surfaces and shoes in order to test and/or improve the same”; [0009]-[0014]; [0031] “FIGS. 4 and 5 show an embodiment of the turf testing apparatus 10 as illustrated in FIG. 1”; [0032] “FIG. 6 illustrates various components associated with a monitoring and control system 60 associated with the assembly 10”; [0014] “FIG. 6 is another perspective view of the apparatus shown in FIG. 4”; [0033] “turf surfaces, including various types of flooring, dirt surfaces, gravel surfaces, hard surfaces, soft surfaces or other surfaces, including surfaces in orientations other than horizontal surfaces, such as vertical and inclined surfaces”), the at least one surface performance test apparatus (turf testing apparatus) comprising: a cart (fig. 6, carriage 26) slidably affixed to a rail (fig. 6, track 36) ([0024]-[0026]); one or more wheels (fig. 6, wheels 64) for transportability ([0032] “apparatus 10 has an external framework 62 that rests on wheels 64, allowing the movement of the apparatus 10 with respect to the turf 14”; [0025] “mobility of the entire apparatus 10 may be facilitated by deployable wheels or other suitable structure or functionality associated with the external framework”); an actuator (actuator comprising first & second; only actuator 22 is labeled) linked to the cart (fig. 6, carriage 26) ([0026] “Carriage 26 may be driven along the elongated track 36 (along substantially horizontal axis 34) by another actuator”; [0019]-[0022], [0027]-[0028], [0031]); and a footform (fig. 6, foot-form/shoe 12; Examiner notes foot-form/shoe is not labeled in fig. 6, see figs. 1-3 for labeling) affixed to the cart (fig. 6, carriage 26) ([0016] “although not shown in the Figures, the shoe 12 is mounted to a foot-form (for instance, a conventional shoe tree) allowing the shoe 12 to be securely associated with the apparatus 10, while also allowing the shoe 12 to be removed and interchanged with other footwear for testing”), wherein the footform (foot-form/shoe 12) is configured to mimic a human foot, animal hoof or animal foot ([0012] “Shoe 12 may be any type of footwear (including cleated and non-cleated footwear) or other construct for investigation (including, without limitation, a construct simulating a bare foot, an animal paw or hoof, or some other type of construct for investigation”), wherein the cart (fig. 6, carriage 26), rail (fig. 6, track 36) and actuator (actuator comprising first & second) are arranged to move the cart (fig. 6, carriage 26) and attached footform (foot-form/shoe 12) at an angle relative to a substantially horizontal surface (fig. 6, surface 14) to be tested, whereby the footform (foot-form/shoe 12) contacts the surface (fig. 6, surface 14) to be tested at a desired contact angle ([0022] “shoe sub-assembly 24 will cause it to be initially biased at an approximately 11 degree angle. In some embodiments, the initial angle of shoe 12 may be adjustable, or may be pre-set for other angulations”; [0023] “particular angular orientation”; [0027] “at an angle (when viewed from the side) of approximately 11 degrees to the turf surface 14”; [0030] “use of a wide variety of footwear, at different angles of impaction (in angular and normal planes to the turf surface), and at various simulated body weights and running speeds”), the system comprising:
a computing platform (fig. 6, control system 60) ([0032] “combination of computer and manual controls”) including a processor (computer) and a memory (at once so envisaged; memory of computer), wherein the computing platform (fig. 6, control system 60) is configured for:
receiving configuration information associated with a surface performance test (Abstract “testing turf or other surfaces),
wherein receiving the configuration information includes receiving, via a user interface (manual controls cooperating with computer system), manual input;
obtaining surface performance test information acquired using the at least one surface performance test apparatus (turf testing apparatus) ([0008] “study the force environments during impact and at other times during the shoe/turf surface interface, and may allow one to reach conclusions about the suitability of a particular turf surface or shoe, or to compare and contrast a turf surface and/or shoe with other turf surfaces and shoes in order to test and/or improve the same”); and
generating at least one graphical representation indicating the surface performance test information associated with the test location ([0029], [0032] “The force readings may be recorded, for instance, as a function of force vs. distance traveled (e.g. horizontal position of the carriage 26), as a function of force vs. time, or in other manners. Data reflecting the force readings may be output as tables, charts, or in other manners”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Yngve’s surface performance test apparatus and associated surface performance testing with Cline’s method and associated structure for generating a graphical representation associated with a surface test apparatus, thereby providing the expected advantages of evaluating forces—such as friction and traction forces—acting at the footwear/turf interface which allows one to reach conclusions about the suitability of a particular turf surface or shoe, or to compare and contrast a turf surface and/or shoe with other turf surfaces and shoes in order to test and/or improve the same. Complementarily, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Cline’s grid pattern measurement and graphical representation of the surface testing with Yngve’s surface performance test apparatus and associated method for the expected purpose of mapping out collected measurements and assisting the user in visualizing the properties of the surface being tested. The Examiner additionally notes that the Courts have ruled an obviousness analysis based on the collective teachings of the references does not depend on the order in which the references are listed in the statement of the rejection. See In re Bush, 296 F.2d 491, 496 (CCPA 1961): “In a case of this type where a rejection is predicated on two references each containing pertinent disclosure which has been pointed out to the applicant, we deem it to be of no significance, but merely a matter of exposition, that the rejection is stated to be on A in view of B instead of on B in view of A, or to term one reference primary and the other secondary.”
Regarding item 2):
It has been held that broadly providing a mechanical or automatic means to replace manual activity which has accomplished the same result involves only routine skill in the art, see MPEP § 2144.04(III) and In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958). The Examiner notes in the present case, that the Examiner is putting forth a similar assessment that only routine skill in the art is required to manually input data where it is known to automate the input of data, especially where the prior art teaches a means for manual input of data.
Furthermore, choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success is obvious to try, see MPEP § 2143(I)(E). The Examiner also notes that MPEP § 2145(III)(X)(B) states “An “obvious to try” rationale may support a conclusion that a claim would have been obvious where one skilled in the art is choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success. “[A] person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 538, 421,82 USPQ2d 1385, 1397 (2007).” In the present case, it is the Examiner’s position that manually entering test location information (user provided input) into Cline’s user interface (fig. 6, interface 240 with input devices 230) merely requires common sense and ordinary skill—especially when GPS coordinates are unavailable by automated means or if a map is not already associated with the coordinates—thereby providing useful information such as the coordinates, type of site, spacing, dimensions, paths, etc., as well as any additional data (ETC.) to associate within the tables of information being stored, including additional data of interest in Yngve such as particular foot/footwear utilized in surface performance testing.
In view of the above, either one of ordinary skill in the art at the time the invention was effectively filed would at once envisaged that Cline already reasonably teaches inputting test location information (user provided input) into Cline’s user interface (fig. 6, interface 240 with input devices 230), or nevertheless, or in the alternative, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to so have the user manually input data into Cline’s user interface for the aforementioned reasons further including for supplementing any missing (or merely additionally useful) information, for correcting any information that is found by the user to be in error, and/or for saving on hardware costs, software costs, &/or reducing complexity.
Regarding independent claim 7,
Cline teaches a non-transitory computer readable medium (computer readable media; fig. 6, memory 204) comprising computer executable instructions embodied in the computer readable medium that when executed by a processor (fig. 6, processing device 202) of a computer (fig. 6 comprising computing device 200) cause the computer (fig. 6 comprising computing device 200) to perform steps comprising (Title “EVALUATION OF GROUND SURFACE HARDNESS”; Abstract “Evaluating ground surface hardness for a site involves using a mobile data collection device to automatically drop an object including an accelerometer onto a ground surface at sample locations spaced at regular intervals within the site”; [0006] “generating a value representative of ground surface hardness for each of the sample locations”; [0030] “The site typically includes a playing surface that is configured for the playing of a sport or other activity. An example of a site is a playing field, such as a field (e.g., a football field, a soccer field, a baseball field), a track (e.g., a horse track, a running track), a golf course (e.g., the putting green, fairway, rough, or tee box)”; [0031] “Turf includes both natural turfgrass as well as synthetic turf systems”; [0033] “Examples of ground surface hardness measurement devices are illustrated and described in more detail with reference to FIGS. 2-3”; [0075] “Computing device 200 includes, in some embodiments, at least one processing device 202 and memory 204. A variety of processing devices 202 are available from a variety of manufacturers, for example, Intel or Advanced Micro Devices. In some embodiments, the processing device 202 is configured to perform one or more methods or operations as defined by instructions stored in a memory device”; [0076] “Computing device 200 also includes, in some embodiments, at least one memory device 204. Examples of memory devices 204 include read-only memory 208 and random access memory 210. Basic input/output system 212, containing the basic routines that act to transfer information within computing device 200, such as during start up, is typically stored in read-only memory 208. Memory device 204 can be a part of processing device 202 or can be separate from processing device 202”; [0067] “a table 160 is stored in a memory device of computing device 138 of data collection vehicle 132. In some embodiments, after the data points 142 are collected, the data is transferred from computing device 138 to a computer storage medium, such as a CD or flash drive, or to another computing device, such as across a network”; [0084] “Computing device 200 typically includes at least some form of computer-readable media. Computer readable media include any available media that can be accessed by computing device 200. By way of example, computer-readable media include computer readable storage media and communication media”; [0085] “The term computer readable media as used herein includes computer storage media” and “computer readable storage media is non-transitory media”):
receiving configuration information associated with a surface (ground surface) performance test, wherein receiving the configuration information includes receiving, via a user interface (fig. 6, interface 240 with input devices 230), test location information (user provided input; at once so envisaged that user inputs the non-automated information through the user interface; additional obviousness provided) for identifying at least one user defined location (site) of a surface (ground surface) to be tested in the surface (ground surface) performance test ([0035] “collect additional data. Examples of other data include soil moisture data, location data (such as global positioning system data), irrigation system location data, soil penetration data, spectrometer data, or other data identifying one or more characteristics of, or related to, the ground surface”; [0063] “one or more additional pieces of data are also collected, such as GPS coordinates, soil moisture measurements, soil penetration measurements, and any other data that can be measured or detected”; [0034] “paths for collecting ground surface hardness data. For example, in some embodiments, the data points are collected along approximately a 10' by 10' grid, although other embodiments utilize other data collection dimensions and arrangements”; [0066] “the spacing and locations of the one or more paths P2 is determined by characteristics of the site S1”; [0081] “user provides inputs to the computing device 200 through one or more input devices 230. Examples of input devices 230 include keyboard 232, mouse 234, touchpad 236, and touch sensitive display 238. Other embodiments include other input devices 230”; [0091] “GPS coordinates”; [0096] “Upon display, a user can evaluate the data points, such as to identify particular regions of the site S1”; [0092] “if GPS coordinates are not available, or if the map is not associated with GPS coordinates, a position of a first point can be visually identified on the map, and subsequent points can be determined”);
obtaining surface (ground surface) performance test information acquired using at least one surface (ground surface) performance test apparatus (ground surface hardness measurement devices; see exemplary figs. 2-3); and
generating at least one graphical representation indicating the surface (ground surface) performance test information associated with the at least one user defined location ([0018] “map display graphically depicting collected data to permit visual evaluation of ground surface hardness values”; [0019] “map display graphically depicting the collected data”; [0025] “example map display for another exemplary site, illustrating collected and interpolated hardness data”; [0026] “example map display illustrating the standard deviations of the hardness data”; [0036] “data processing is performed to interpolate the data, and to plot the data on a map of the site to permit visual inspection and evaluation of the ground hardness data”; [0098] “graphically depicting the collected data”; [0101] “using colors associated with ranges”; [0103] “surface hardness evaluation system compares the data points to other data as part of the evaluation. For example, the locations of the sprinkler heads can be used to look for correlations between the locations of sprinkler heads and the ground surface hardness”).
While it is the Examiner's position that Cline reasonably teaches a broad interpretation of surface performance testing by a surface performance test apparatus, the Examiner acknowledges item 1): structural differences of the instant disclosure’s surface performance test apparatus and Cline. Similarly, while Cline reasonably suggests to an ordinary artisan that a user is using the input devices & interface to input information pertaining to the location, the Examiner nevertheless acknowledges item 2): that Cline does not explicitly state the specifics of the user input information.
Regarding item 1), Yngve teaches a method for generating a graphical representation associated with surface performance test information from using at least one surface performance test apparatus (turf testing apparatus) (Title “TURF TESTING APPARATUS AND METHODS”; [0005] “apparatuses and methods for testing turf or other surfaces and footwear or other structures that interact with such surfaces, including evaluating forces, such as, but not limited to, friction and traction forces acting at the footwear/turf interface”; [0008] “study the force environments during impact and at other times during the shoe/turf surface interface, and may allow one to reach conclusions about the suitability of a particular turf surface or shoe, or to compare and contrast a turf surface and/or shoe with other turf surfaces and shoes in order to test and/or improve the same”; [0009]-[0014]; [0031] “FIGS. 4 and 5 show an embodiment of the turf testing apparatus 10 as illustrated in FIG. 1”; [0032] “FIG. 6 illustrates various components associated with a monitoring and control system 60 associated with the assembly 10”; [0014] “FIG. 6 is another perspective view of the apparatus shown in FIG. 4”; [0033] “turf surfaces, including various types of flooring, dirt surfaces, gravel surfaces, hard surfaces, soft surfaces or other surfaces, including surfaces in orientations other than horizontal surfaces, such as vertical and inclined surfaces”), the at least one surface performance test apparatus (turf testing apparatus) comprising: a cart (fig. 6, carriage 26) slidably affixed to a rail (fig. 6, track 36) ([0024]-[0026]); one or more wheels (fig. 6, wheels 64) for transportability ([0032] “apparatus 10 has an external framework 62 that rests on wheels 64, allowing the movement of the apparatus 10 with respect to the turf 14”; [0025] “mobility of the entire apparatus 10 may be facilitated by deployable wheels or other suitable structure or functionality associated with the external framework”); an actuator (actuator comprising first & second; only actuator 22 is labeled) linked to the cart (fig. 6, carriage 26) ([0026] “Carriage 26 may be driven along the elongated track 36 (along substantially horizontal axis 34) by another actuator”; [0019]-[0022], [0027]-[0028], [0031]); and a footform (fig. 6, foot-form/shoe 12; Examiner notes foot-form/shoe is not labeled in fig. 6, see figs. 1-3 for labeling) affixed to the cart (fig. 6, carriage 26) ([0016] “although not shown in the Figures, the shoe 12 is mounted to a foot-form (for instance, a conventional shoe tree) allowing the shoe 12 to be securely associated with the apparatus 10, while also allowing the shoe 12 to be removed and interchanged with other footwear for testing”), wherein the footform (foot-form/shoe 12) is configured to mimic a human foot, animal hoof or animal foot ([0012] “Shoe 12 may be any type of footwear (including cleated and non-cleated footwear) or other construct for investigation (including, without limitation, a construct simulating a bare foot, an animal paw or hoof, or some other type of construct for investigation”), wherein the cart (fig. 6, carriage 26), rail (fig. 6, track 36) and actuator (actuator comprising first & second) are arranged to move the cart (fig. 6, carriage 26) and attached footform (foot-form/shoe 12) at an angle relative to a substantially horizontal surface (fig. 6, surface 14) to be tested, whereby the footform (foot-form/shoe 12) contacts the surface (fig. 6, surface 14) to be tested at a desired contact angle ([0022] “shoe sub-assembly 24 will cause it to be initially biased at an approximately 11 degree angle. In some embodiments, the initial angle of shoe 12 may be adjustable, or may be pre-set for other angulations”; [0023] “particular angular orientation”; [0027] “at an angle (when viewed from the side) of approximately 11 degrees to the turf surface 14”; [0030] “use of a wide variety of footwear, at different angles of impaction (in angular and normal planes to the turf surface), and at various simulated body weights and running speeds”), the method comprising:
at a computing platform (fig. 6, control system 60) ([0032] “combination of computer and manual controls”) including a processor (computer) and a memory (at once so envisaged; memory of computer):
receiving configuration information associated with a surface performance test (Abstract “testing turf or other surfaces),
wherein receiving the configuration information includes receiving, via a user interface (manual controls cooperating with computer system), manual input;
obtaining surface performance test information acquired using the at least one surface performance test apparatus (turf testing apparatus) ([0008] “study the force environments during impact and at other times during the shoe/turf surface interface, and may allow one to reach conclusions about the suitability of a particular turf surface or shoe, or to compare and contrast a turf surface and/or shoe with other turf surfaces and shoes in order to test and/or improve the same”); and
generating at least one graphical representation indicating the surface performance test information associated with the test location ([0029], [0032] “The force readings may be recorded, for instance, as a function of force vs. distance traveled (e.g. horizontal position of the carriage 26), as a function of force vs. time, or in other manners. Data reflecting the force readings may be output as tables, charts, or in other manners”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Yngve’s surface performance test apparatus and associated surface performance testing with Cline’s media, method, & associated structure for generating a graphical representation associated with a surface test apparatus, thereby providing the expected advantages of evaluating forces—such as friction and traction forces—acting at the footwear/turf interface which allows one to reach conclusions about the suitability of a particular turf surface or shoe, or to compare and contrast a turf surface and/or shoe with other turf surfaces and shoes in order to test and/or improve the same. Complementarily, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Cline’s non-transitory readable storage media and associated system having grid pattern measurement and graphical representation of the surface testing with Yngve’s surface performance test apparatus and associated method for the expected purpose of mapping out collected measurements and assisting the user in visualizing the properties of the surface being tested, as well as for conveniently providing explicit storage of the method which can be commercially distributed, updated, and/or replaced. The Examiner additionally notes that the Courts have ruled an obviousness analysis based on the collective teachings of the references does not depend on the order in which the references are listed in the statement of the rejection. See In re Bush, 296 F.2d 491, 496 (CCPA 1961): “In a case of this type where a rejection is predicated on two references each containing pertinent disclosure which has been pointed out to the applicant, we deem it to be of no significance, but merely a matter of exposition, that the rejection is stated to be on A in view of B instead of on B in view of A, or to term one reference primary and the other secondary.”
Regarding item 2):
It has been held that broadly providing a mechanical or automatic means to replace manual activity which has accomplished the same result involves only routine skill in the art, see MPEP § 2144.04(III) and In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958). The Examiner notes in the present case, that the Examiner is putting forth a similar assessment that only routine skill in the art is required to manually input data where it is known to automate the input of data, especially where the prior art teaches a means for manual input of data.
Furthermore, choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success is obvious to try, see MPEP § 2143(I)(E). The Examiner also notes that MPEP § 2145(III)(X)(B) states “An “obvious to try” rationale may support a conclusion that a claim would have been obvious where one skilled in the art is choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success. “[A] person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 538, 421,82 USPQ2d 1385, 1397 (2007).” In the present case, it is the Examiner’s position that manually entering test location information (user provided input) into Cline’s user interface (fig. 6, interface 240 with input devices 230) merely requires common sense and ordinary skill—especially when GPS coordinates are unavailable by automated means or if a map is not already associated with the coordinates—thereby providing useful information such as the coordinates, type of site, spacing, dimensions, paths, etc., as well as any additional data (ETC.) to associate within the tables of information being stored, including additional data of interest in Yngve such as particular foot/footwear utilized in surface performance testing.
In view of the above, either one of ordinary skill in the art at the time the invention was effectively filed would at once envisaged that Cline already reasonably teaches inputting test location information (user provided input) into Cline’s user interface (fig. 6, interface 240 with input devices 230), or nevertheless, or in the alternative, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to so have the user manually input data into Cline’s user interface for the aforementioned reasons further including for supplementing any missing (or merely additionally useful) information, for correcting any information that is found by the user to be in error, and/or for saving on hardware costs, software costs, &/or reducing complexity.
Regarding claim 2, which depends on claim 1,
the previous combination of Cline and Yngve (see analysis of independent claim) suggest
wherein the graphical representation includes a (silent) heatmap, (silent) a bar graph, (silent) a pie chart, an interactive graph, or an interactive chart (Cline: [0093] “values are displayed upon mouse-over, or upon clicking on a data point”; [0082] “display device 242 and touch sensitive display 238 are the same device”; [0096] “Upon display, a user can evaluate the data points, such as to identify particular regions of the site S1”; and see chart in fig. 9, see graphs in figs. 7, 8, & 12-15. Yngve: [0032] “Data reflecting the force readings may be output as tables, charts, or in other manners”); or
wherein the surface performance test information includes information about the surface (see e.g., Cline fig. 5), (silent) information about the at least one surface performance test apparatus (turf testing apparatus), information about footwear or test instruments (Examiner’s previous combination suggests information about Yngve foot/footwear as part of the ETC in the Table), and/or information about interactions between the footwear and the surface or the at least one surface performance test apparatus (turf testing apparatus) and the surface (e.g., hardness, force readings, friction, traction, etc.).
Regarding claim 3, which depends on claim 1,
the previous combination of Cline and Yngve (see analysis of independent claim) reasonably suggests wherein the user interface (Cline, fig. 6, interface 240 with input devices 230) is a graphical user interface (Cline: [0082] “display device 242 and touch sensitive display 238 are the same device”; [0092] “a position of a first point can be visually identified on the map”; [0096] “Upon display, a user can evaluate the data points, such as to identify particular regions of the site S1”; at once envisaged that a GUI is utilized with a touchscreen) and wherein receiving the test location information includes a user (user) indicating multiple user defined locations (site, path, start, stop, spacing, etc.) by interacting with a visual representation of the surface (Cline: [0066] “For example, if the site S1 is a football field, the path P2 can be positioned relative to the yard lines. In an American football field, yard lines are typically provided at five yard intervals across the field. In one example, the rows of the path P2 are positioned at midpoints between yard lines (e.g., 2.5 yards, 7.5 yards, 12.5 yards, etc.). A benefit of taking measurements between yard lines is that it reduces the effect that paint may have on the hardness measurements. For example, the paint may slightly increase hardness measurements taken on a yard line. In another possible embodiment, at least some of the measurements are taken on the yard lines” and “paint”; [0103] “For example, the locations of the sprinkler heads”. Examiner’s position is that it is at once envisaged that the user is interacting with the touchscreen and visual representation to define the aforementioned parameters and to avoid elements such as lines, paint, etc.).
The Examiner acknowledges that Cline does not explicitly state items: 1): that Cline’s touchscreen comprises a graphical user interface; and 2) that Cline’s touchscreen is used to interact with Cline’s visual representations to define locations.
Regarding item 1), the Examiner takes Official Notice that GUI are well-known in the art and that utilizing a GUI with a touchscreen is conventional.
Therefore, either one of ordinary skill in the art at the time the invention was effectively filed would at once envisaged that Cline’s touchscreen has a GUI, or nevertheless, or in the alternative, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine a conventional GUI therewith for the expected purpose of providing a user interface that enables the user to interact with the visual elements by touch.
Regarding item 2):
The Examiner takes Official Notice that a user interacting with a GUI for a visual representation of data on a touchscreen interface is conventional.
The Examiner again notes that choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success is obvious to try, see MPEP § 2143(I)(E). The Examiner also notes that MPEP § 2145(III)(X)(B) states “An “obvious to try” rationale may support a conclusion that a claim would have been obvious where one skilled in the art is choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success. “[A] person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103.” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 538, 421,82 USPQ2d 1385, 1397 (2007).” It is the Examiner’s position that utilizing Cline’s touchscreen to interact with Cline’s visually represented map of the site to define with the touchscreen user interface Cline’s aforementioned parameters merely requires common sense applied to routine activity, and thus enables the user to avoid testing at locations outside of the site, locations where there is paint (e.g., paint defining locations for sports such as football), and/or other elements to avoid (e.g., sprinkler heads).
Therefore, either one of ordinary skill in the art at the time the invention was effectively filed would at once envisaged that Cline’s touchscreen is so used to interact with Cline’s visual representations, or nevertheless, or in the alternative, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to commonsensically utilize Cline’s touchscreen to interact with Cline’s visually represented map of the site to define with the touchscreen user interface Cline’s aforementioned parameters for the aforementioned advantages.
Regarding claim 4, which depends on claim 1,
the previous combination of Cline and Yngve (see analysis of independent claim) reasonably suggests wherein the surface performance test information includes information about soil moisture (Cline, fig. 5), surface hardness (Cline, fig. 5) (Cline: [0035] “In addition to ground hardness data, some embodiments also collect additional data. Examples of other data include soil moisture data, location data (such as global positioning system data), irrigation system location data, soil penetration data, spectrometer data, or other data identifying one or more characteristics of, or related to, the ground surface"), (additional limitations in the alternative silent and/or presently unaddressed) head impact criteria, vertical deformation, energy restitution, force reduction, rotational traction, linear traction, infill depth, grass percentage, plant count, and/or surface temperature.
Regarding claim 5, which depends on claim 1,
the previous combination of Cline and Yngve (see analysis of independent claim) reasonably suggests wherein the configuration information includes color information for indicating one or more colors or shades of a color to use when generating the at least one graphical representation (Cline: [0095] “graphical elements include different colors, where the colors are associated with hardness values. For example, a first color (e.g., red) is used to display data points having relatively high hardness values, and a second color (e.g., green) is used to display data points having relatively low hardness values. Multiple colors can be used, with each color used to represent different ranges of hardness values”; [0101] “Any quantity of colors can be used, as desired. For example, the quantity of colors is in a range from 3 to 10. In other possible embodiments, tens, hundreds, or even thousands of colors are used”; at once so envisaged that a user enters the desired colors).
Cline does not explicitly state wherein the configuration information input by the user includes configuring the color information for the graphical representation.
However, the Examiner takes Official Notice that utilizing color information in graphical representations is conventional, and further takes Official Notice that choosing/configuring the color scheme for a graphical representation is likewise routine in the art (the Examiner notes as a quick & trivial example that even Microsoft® Word utilized to write this Office Action has long allowed for a user to choose/configure color schemes for graphical representation of data).
Therefore, either one of ordinary skill in the art at the time the invention was effectively filed would at once envisaged that Cline teaches the user configuring the desired color scheme, or nevertheless, or in the alternative, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine conventional user choosing of color schemes for the expected purpose of customization, user preference, for artistic/commercial utility, and/or to provide better contrast against background map/data colors.
Conclusion
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Any inquiry concerning this communication or earlier communications from the Examiner should be directed to DAVID L SINGER whose telephone number is 303-297-4317. The Examiner can normally be reached Monday - Friday 8:00 am - 6:00pm CT, EXCEPT alternating Friday.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, John Breene can be reached on 571-272-4107. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID L SINGER/Primary Examiner, Art Unit 2855 07FEB2026