DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Examiner's Note
Examiner has cited particular paragraphs and/or columns and line numbers and/or figures in the references as applied to the claims below for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested from the applicant, in preparing the responses, to fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner. The Examiner notes that it has been held that a recitation that a structural element is "adapted to", “configured to”, “capable of, “arranged to”, “intended to” or “operable to” perform a function does not limit the claim to a particular structure and thus only requires the ability to so perform the function. (See In re Hutchison, 69 USPQ 138. See also, MPEP 2111.04) As such, under the broadest reasonable interpretation of the claims and the prior art, the recitations of "adapted to", “configured to”, “capable of, “arranged to”, “intended to” or “operable to” will be deemed met by an element in the prior art capable of performing the function recited in connection with "adapted to", “configured to”, “capable of, “arranged to”, “intended to” or “operable to”. The examiner is aware of the functional language in various claims.
Disclaimer
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 8-10 and 12 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 claim 8, the claim depends on claim 6, which is directed to an amusement device, but claim 8 recites limitations directed to “the amusement kit”. Therefore, it is unclear what claimed subject matter claim 8 further limits.
Claims 9 and 10 depend from claim 7 but recite “the target”, for which claim 7 provides no antecedent basis. The target is introduced in claim 8. Thus, “the target” in claims 9 and 10 lacks proper antecedent basis.
Claim 12 depends from claim 9, which is directed to an amusement kit, but claim 12 recites “the method…” and manufacturing steps involving an assembled midsection. It is unclear what method claim 12 further limits.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 7 are rejected under 35 U.S.C. 102(a)(1)/102(a)(2) as being anticipated by Goldfarb (US Patent No. 3.108,395).
Goldfarb discloses an amusement device/kit (see Figures 5-6) comprising: an upper (13’); a midsection (body/12’); a base (38’); and, a launching mechanism adapted to launch the upper from the midsection (compression spring (32’) in combination with the latch/release mechanism as shown in Figures 5-6), wherein the upper member (13’) is releasably retained relative to body (12’) against the bias of spring (32’) and is projected therefrom upon release. See also column 3 lines 20-43).
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the target as recited in claims 8-10 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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 should not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over Goldfarb (US Patent No. 3,108,395) in view of Mroczka et al. (US Patent Application Publication No. 2012/0266853).
Regarding claim 2, Goldfarb does not explicitly disclose one or more hook levers; one or more hook lever compression springs; and one or more launch buttons. Mroczka teaches pivotal catches/triggers (50) having lever arms (52), spring-loaded launchers (40) having compression springs (46), and an actuator (30)/head (38), wherein movement of actuator (30) causes triggers (50) to pivot and release the spring-loaded launchers. It would have been obvious to one of ordinary skill in the art to modify the latch/release mechanism of Goldfarb to include to provide a lever and actuator release arrangement for positive retention and controlled, user actuated release of the spring-loaded upper, since Mroczka teaches such an arrangement for selectively retaining and releasing a spring-loaded launchable member.
Regarding claim 3, Goldfarb’s upper houses the launching mechanism including compression spring (32’) in the embodiment of Figures 5-6.
Regarding claim 4, Goldfarb’s compression spring (32’) provides the spring force for launching upper (13’) upon release of the latch/release mechanism.
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Goldfarb.
Regarding claim 5, Goldfarb does not expressly disclose wherein the upper is a substantially spherical polymer ball having a diameter of approximately 40 mm. However, it would have been obvious to one of ordinary skill in the art to form Goldfarb’s launchable upper 13’ as a substantially spherical polymer ball and to select a diameter of approximately 40 mm as a matter of routing design choice to provide a lightweight, durable launchable upper of a size suitable for the hand-held amusement device, absent a showing that the particular material, spherical configuration, or approximately 40 mm dimension produces an unexpected result.
Regarding claim 6, Goldfarb does not expressly disclose wherein the upper is substantially spherical and has a diameter of approximately 63.5 mm. It would have been obvious to one of ordinary skill in the art to form Goldfarb’s launchable upper 13’ as a substantially spherical and to select a diameter of approximately 63.5 mm to provide a suitably sixed launchable upper for the hand-held amusement device, the particular diameter representing a result-effective dimensional parameter that would have been routinely selected according to the desired size, handling, and launching characteristics of the toy.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Goldfarb in view of Wilkinson et al. (US Patent Application Publication No. 2002/0164921).
Regarding claim 8, Goldfarb discloses the amusement kit of claim 7, but does not explicitly disclose a target. Wilkinson teaches a spring-launched amusement device used with a basketball hoop, which constitutes a target toward which the launched object may be directed (see Wilkinson paragraph 8). It would have been obvious to one of ordinary skill in the art to provide the amusement kit of Goldfarb with an object, as taught by Wilkinson, to provide an objecting toward which the launched upper may be directed, thereby providing a predictable game-playing function for the amusement kit.
Regarding claim 9, Wilkinson further teaches wherein the target resembles a basketball hoop, by expressly disclosing a basketball hoop as a target/play structure for the launched projectile (see paragraph 8 of Wilkinson).
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over the references as applied to claim 7 above, and further in view of Nelson (US Patent Application Publication No. 2017/0368433).
The references as applied to claim 7 do not explicitly disclose the target as being a cup. Nelson teaches wherein the target is a cup, namely funnel (20), which has an open, cup-shaped receiving portion configured to receive a launched ball (16). See Figure 1 of the Nelson reference. It would have been obvious to one of ordinary skill in the art to provide the target of Goldfarb/Willims in the form of Nelson’s cup-shaped funnel (20) to provide a receptacle for receiving the launched object, thereby providing a predictable target for the amusement game.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Goldfarb in view of Andersen (US Patent Publication No. 2009/0140493).
Goldfarb teaches an amusement device comprising an upper (13’), midsection (51), base (38’), and launching mechanism including spring (32’), with the assembled components adapted to form a hand-held amusement device. Goldfarb does not expressly teach sonic welding a front upper to rear upper to form an assembled upper; sonic welding a front midsection to a rear midsection to form an assembled midsection; and sonic welding a base top to a base bottom to form an assembled base. Andersen teaches manufacturing/assembling amusement device components using conventional fastening and joining techniques including welding and ultrasonic welding (see paragraph 32). Andersen also teaches forming its device from suitable polymeric materials and assembling the device from component parts (see paragraph 17). It would have been obvious to one of ordinary skill in the art to manufacture the respective mating portions of Goldfarb’s upper (13’), midsection (51), and base (38’) using the ultrasonic welding taught by Andersen, as a known technique for permanently joining mating components of an amusement device, thereby forming the respective assembled upper, assembled midsection, and assembled base.
Allowable Subject Matter
Claim 12 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims and if the 112 provided above is overcome.
Conclusion
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Any inquiry concerning this communication or earlier communications from the examiner should be directed to NINI F LEGESSE whose telephone number is (571)272-4412. The examiner can normally be reached Mon - Friday 9 AM - 5:30 PM.
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/NINI F LEGESSE/ Primary Examiner, Art Unit 3711
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