Ex Parte Bissonnette et al

Patent Trial and Appeal BoardDec 10, 2012

10861856 (P.T.A.B. Dec. 10, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 10/861,856 06/07/2004 Laurent Bissonnette 20002.0415 2813 79175 7590 12/10/2012 MURPHY & KING PROFESSIONAL CORPORATION 1055 Thomas Jefferson Street, NW Suite 400 WASHINGTON, DC 20007 EXAMINER RADA, ALEX P ART UNIT PAPER NUMBER 3716 MAIL DATE DELIVERY MODE 12/10/2012 PAPER Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte LAURENT BISSONNETTE, DIANE I. PELLETIER, MICHAEL J. TOUPIN, WILLIAM GOBUSH, DOUGLAS ALAN GRIBBEN, and PAUL LENTZ ____________ Appeal 2010-009296 Application 10/861,856 Technology Center 3700 ____________ Before JOSEPH A. FISCHETTI, BIBHU R. MOHANTY, and MICHAEL W. KIM, Administrative Patent Judges. MOHANTY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-009296 Application 10/861,856 2 STATEMENT OF THE CASE The Appellants seek our review under 35 U.S.C. § 134 (2002) of the final rejection of claims 1-9, 11-13, 18-35, and 39-41, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b) (2002). SUMMARY OF THE DECISION We REVERSE. THE INVENTION The Appellants’ claimed invention is directed to a launch monitor capable of imaging events such as the motion of a golfer’s ball (Spec. 2:6-8). Claim 1, reproduced below with the numbering in brackets added, is representative of the subject matter on appeal. 1. An apparatus for determining golf club and ball kinematics, comprising: a camera system having a field of view and a display device; a teeing aid operable to assist a golfer in placing the golfball within the camera's field of view in order to locate the ball within a predetermined teeing position; [1] wherein the teeing aid determines the distance between a trigger and the placement of the golf ball. THE REJECTIONS The Examiner relies upon the following as evidence in support of the rejections: Eccher US 5,401,026 Mar. 28, 1995 Dionne US 5,645,494 Jul. 8, 1997 Appeal 2010-009296 Application 10/861,856 3 Yamamoto US 6,579,190 B2 Jun. 17, 2003 Cameron US 7,311,611 B2 Dec. 25, 2007 The following rejections are before us for review: 1. Claims 1, 2, 6, 7, 11-13, 18, 19, 34, 35, and 39-411 are rejected under 35 U.S.C. § 103(a) as unpatentable over Cameron and Eccher. 2. Claims 3-5 are rejected under 35 U.S.C. § 103(a) as unpatentable over Cameron. 3. Claims 8, 9 and 20-33 are rejected under 35 U.S.C. § 103(a) as unpatentable over Cameron and Yamamoto. FINDINGS OF FACT We find the findings of fact used in the Analysis section below are supported at least by a preponderance of the evidence:2 ANALYSIS The Appellants argue that the rejection of claim 1 is improper because the prior art does not teach “a teeing aid that determines the distance 1 The rejection heading in the Answer omits claims 11-13, 18, 19, and 39-41 but these are included in the body of the rejection and the claims are considered to be rejected under Cameron and Eccher. Claims 34 and 35 are indicated as being rejected by the Examiner but not included the rejection, though they were rejected under Cameron and Eccher in the Final Rejection. The omission of claims 34 and 35 is therefore considered a typographical error and they are included in this rejection. Additionally, despite the rejection on pages 7-8 of the Answer, claims 14-17 are indicated as having been cancelled (Br. 4, 11; final Office Action mailed December 22, 2008). 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2010-009296 Application 10/861,856 4 between a trigger and the placement of a golf ball” (Br. 8). In contrast, the Examiner has determined that the rejection of record is proper (Ans. 3-4, 7- 10). We agree with the Appellants. The Examiner has determined that claim limitation [1] does not require that the distance between the trigger and the golf ball is calculated. Claim limitation [1] however requires “wherein the teeing aid determines the distance between a trigger and the placement of the golf ball.” Support for this claim limitation is given in the Specification at page 35, lines 7-9. Giving this claim limitation its broadest reasonable interpretation in light of the Specification would require that the teeing aid determines the distance between the trigger and the placement of the golf ball in some manner. Here, the Examiner has determined that this is shown by Eccher which “teaches a microphone...to be the trigger and the ball being placed at a desired distance of about 12 to 18 inches to determine the correct distance between the ball and trigger,” (Ans. 4) but this is not what is claimed. In claim limitation [1], the cited claim limitation specifically requires that the teeing aid determines the distance between the trigger and the golf ball rather than just suggests it to be 12 to 18 inches, and thus the cited claim limitation has not been shown in the prior art as the actual distance is not determined by the teaching aid in Eccher as cited. The rationale for the combination provided at page 4 of the Answer also fails to provide articulated reasoning with some rational underpinning to support the legal conclusion of obviousness here. For these reasons the rejection of claim 1 and its dependent claims is not sustained. The remaining claims contain a similar limitation and the rejection of these claims is not sustained as well. We note claim 25 contains the subject matter of claim limitation [1] Appeal 2010-009296 Application 10/861,856 5 addressed above, but that rejection of record fails to address the limitation and the rejection is therefore not sustained as well. CONCLUSIONS OF LAW We conclude that Appellants have shown that the Examiner erred in rejecting the claims listed in the Rejection section above. DECISION The Examiner’s rejection of claims 1-9, 11-13, 18-35, and 39-41 is reversed. REVERSED mls