Ex Parte Parker et al

Patent Trial and Appeal Board

Aug 24, 2017

14212505 (P.T.A.B. Aug. 24, 2017)

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.
14/212,505 03/14/2014 Andrew C. Parker 0122627 2682
73325 7590 08/28/2017
Matthew G. McKinney
Allen, Dyer, Doppelt & Gilchrist, P.A.
255 South Orange Avenue
Suite 1401
Orlando, EL 32801
EXAMINER
DAVISON, LAURA L
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
08/28/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
mmckinney @ allendyer.com
creganoa @ allendyer. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW C. PARKER and TIMOTHY D. NICHOLS
Appeal 2016-005875
Application 14/212,505
Technology Center 3700
Before ROBERT E. NAPPI, JOSEPH P. LENTIVECH, and
SCOTT B. HOWARD, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1 and 3—9. Claim 2 has been canceled.
App. Br. 2. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We affirm.
Appeal 2016-005875
Application 14/212,505
STATEMENT OF THE CASE
Appellants ’ Invention
Appellants’ invention generally relates to “a game apparatus for
playing a game commonly known as ‘beer pong.’” Spec. 11. Claims 1, 8,
and 9, which are illustrative of the claimed invention, read as follows:
1. A game apparatus, the apparatus comprising:
a game board having a vertical surface;
a plurality of cup holders pivotally secured to the vertical
surface of the game board, wherein the plurality of cup holders
are configured to pivot relative to the vertical surface of the game
board; and
a plurality of cavities formed into the vertical surface of
the game board, wherein each cavity of the plurality of cavities
is wedge shaped and configured to receive and support a portion
of a bottom edge of a cup placed in the respective cup holder.
8. A game apparatus, the apparatus comprising:
a game board having a vertical surface;
a plurality of cups, wherein each cup having a mouth and
a bottom edge;
a plurality of cup holders pivotally secured to the vertical
surface of the game board, wherein each cup holder is configured
to pivot relative to the vertical surface of the game board and to
hold the mouth of a respective cup at an angle to the vertical
surface of the game board; and
a plurality of cavities formed into the vertical surface of
the game board, wherein each cavity of the plurality of cavities
is wedge shaped and configured to receive and support a portion
of the bottom edge of a cup placed in the respective cup holder.
9. A game apparatus, the apparatus comprising:
a game board having a planar surface;
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Application 14/212,505
a plurality of cup holders pivotally secured to the planar
surface of the game board, wherein each cup holder is configured
to pivot relative to the planar surface of the game board; and
a plurality of cavities formed into the planar surface of the
game board, wherein each cavity of the plurality of cavities is
configured to support a portion of a cup placed in the respective
cup holder.
References
The Examiner relies on the following prior art in rejecting the claims:
Breneman US Des. 235,897 July 15, 1975
Isengaetal. US 5,423,508 June 13, 1995
Cappuccio US 8,651,492 B1 Feb. 18, 2014
BasketPong Beer Pong Game, YouTube video,
https://www.youtube.com/watch?v=OtYuRsRNiEM, uploaded Jan. 25, 2012
(hereinafter “BasketPong”).
Rejections
Claims 1 and 7—9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Cappuccio and Isenga. Final Act. 3—7.
Claims 3—5 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Cappuccio, Isenga, and Breneman.
Final Act. 7—8.
Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Cappuccio, Isenga, Breneman, and
BacketPong. Final Act. 8—9.
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Application 14/212,505
ANALYSIS
We consider Appellants’ arguments seriatim as they are presented in
the Appeal Brief, pages 5—11.
Claim 1
Appellants contend the combination of Cappuccio and Isenga fails to
teach or suggest “a plurality of cavities formed into the vertical surface of
the game board, wherein each cavity of the plurality of cavities is wedge
shaped and configured to receive and support a portion of a bottom edge of a
cup placed in the respective cup holder,” as recited in claim 1. Br. 5—8.
According to Appellants, the plain and ordinary meaning of cavity is “a hole
or space inside something” and the plain and ordinary meaning of wedge-
shaped is “something that is shaped like a triangle or [a] wedge.” Br. 5.
Appellants argue Isenga, upon which the Examiner relies, “describes a
typical cup holder that holds a beverage container in a vertical orientation
using a flat bottom panel” and not a wedge shaped cavity that is configured
to receive and support a portion of a bottom edge of a cup, as required by
claim 1. Br. 6—7 (citing Isenga, Fig. 1).
The Examiner finds, and we agree, Isenga teaches a cup holder
including a forwardly opening cavity. Ans. 2 (citing Isenga 8:10-12). The
Examiner finds, and we agree, because Isenga teaches that the cavity is
forwardly opening, the lower portion of the cavity is capable of supporting a
lower portion of a cup when a cup is placed in the cup holder. Id.
Regarding the lower portion of the cavity, Isenga teaches “[l]eaf spring-like
elements 21 have upper and lower portions located slightly forwardly of the
back wall 14 of the back panel 11 (as seen in FIGS. 1 and 4) to resiliently
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Application 14/212,505
bear forwardly against the back flange 17 of the base panel 12 . . . Isenga
3:64—68. The definition of “wedge” includes “a piece of wood, metal, etc.
tapering to a thin edge: used to split wood, lift a weight, etc.” Webster’s
New World Dictionary 731—31 (2003). Figure 4 depicts the leaf spring-like
element as defining the lower portion of the cavity to taper to a thin edge
ending at the top edge of back flange 17. As such, Isenga teaches or
suggests the cavity being wedge-shaped.
Accordingly, we are not persuaded the Examiner erred in rejecting
claim 1. Because Appellants do not separately argue with particularity
independent claim 7, which recites similar limitations, and claim 3,
whichdepends from claim 1, we are not persuaded the Examiner erred in
rejecting these claims for the same reasons.
Claim 8
Appellants contend the combination of Cappuccio and Isenga fails to
teach or suggest “wherein each cup holder is configured to . . . hold the
mouth of a respective cup at an angle to the vertical surface of the game
board,” as recited in claim 8. Br. 8—9. According to Appellants, the plain
and ordinary meaning of “at an angle” is “a direction or at an inclination
markedly different from parallel, vertical, or horizontal with respect to an
implicit baseline.” Br. 8—9. Appellants argue “Cappuccio only shows a cup
holder holding the cup in a normal direction, so that the mouth of the cup is
horizontal and not inclined at all” and, therefore, does not teach or suggest
that “each cup holder is configured ... to hold the mouth of a respective cup
at an angle to the vertical surface of the game board,” as recited in claim 8.
Br. 9.
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During examination, claims are given their broadest reasonable
interpretation as they would be understood by one of ordinary skill in the art,
taking into account whatever enlightenment by way of definitions or
otherwise that may be afforded by the written description contained in the
specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We agree
with the Examiner (Ans. 3), that the broadest reasonable definition of “at an
angle” includes angles of 0 and 90 degrees. “Construing claims broadly
during prosecution is not unfair to the applicant. . . because the applicant
has the opportunity to amend the claims to obtain more precise claim
coverage.” In reAmer. Acad. ofSci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004). The Examiner finds, and we agree, Cappuccio teaches each cup
holder is configured to hold the mouth of a respective cup at an angle of 90
degrees relative to the vertical surface of the game board. Cappuccio, Fig. 1.
Accordingly, we are not persuaded the Examiner erred in rejecting
claim 8.
Claim 9
Appellants contend the combination of Cappuccio and Isenga fails to
teach or suggest “a plurality of cavities formed into the planar surface of the
game board,” as recited in claim 9. Br. 9. Appellants argue:
[CJlaim 9 recites that the game board has a planar surface, and a
plurality of cavities formed into the planar surface of the game
board, wherein each cavity of the plurality of cavities is
configured to support a portion of a cup placed in the respective
cup holder. The Examiner cited to a “perimeter flange (76)” of
Isenga as being the game board. The Applicants’ submit that a
perimeter flange is not a game board when using the plain
meaning of “game board.”
Br. 9.
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We do not find Appellants’ contention persuasive. The Examiner
relies on Cappuccio, not Isenga, for teaching the claimed “game board.”
Final Act. 6 (citing Cappuccio, Fig. 1). Appellants’ contention fails to
address the express findings of the Examiner and, therefore, is unpersuasive
of error.
Accordingly, we are not persuaded the Examiner erred in rejecting
claim 9.
Claim 4
Appellants contend the combination of Cappuccio, Isenga, and
Breneman fails to teach or suggest “an aperture for hanging the game board
on a wall,” as recited in claim 4. Br. 10.
Appellants do not address the Examiner’s findings with respect to
claim 4 and offer no explanation or reasoning as to how or why the cited
references fail to teach or suggest the limitations of claim 4. Therefore,
Appellants’ contention is unpersuasive. See 37 CFR § 41.37(c)(l)(iv) (“The
arguments shall explain why the examiner erred as to each ground of
rejection contested by [Ajppellant. . . . [A]ny arguments or authorities not
included in the appeal brief will be refused consideration by the Board for
purposes of the present appeal.”) (emphasis added.) Moreover, arguments
not made are deemed waived. See id', cf. In re Baxter Travenol Labs., 952
F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to
examine the claims in greater detail than argued by an [Ajppellant, looking
for nonobvious distinctions over the prior art.”).
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Claim 5
Appellants contend the combination of Cappuccio, Isenga, and
Breneman fails to teach or suggest “a depression formed into the game board
and configured to receive a respective cup holder to lay flat when the cup
holder is pivoted against the game board,” as recited in claim 5. Br. 10.
Appellants argue:
The Examiner alleges that the same back panel (11) of
Isenga that purports to be a wedge shaped cavity configured to
support a bottom edge of a cup, is also a depression formed into
the game board and configured to receive a respective cup holder
to lay flat when the cup holder is pivoted against the game board.
The Applicants submit that the Examiner has impermissibly used
the same element of Isenga for two different structural elements
and for two different functions of claim 5, which the prior art
discloses none.
Br. 10.
We do not find Appellants’ contention persuasive. As discussed
supra, the Examiner finds Isenga teaches the lower portion of the forwardly
opening cavity to be “wedge shaped,” as required by claim 1. Ans. 4. The
Examiner finds, and we agree, Isenga teaches the upper portion of the cavity
is “configured to receive a respective cup holder to lay flat when the cup
holder is pivoted against the game board,” as recited in claim 5. Ans. 4—5
(citing Isenga, Fig. 9). As such, we disagree that the Examiner has
“impermissibly used the same element of Isenga for different structural
elements and for two different functions,” as argued by Appellants. Br. 10.
Accordingly, we are not persuaded the Examiner erred in rejecting
claim 5.
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Claim 6
Appellants contend the combination of Cappuccio, Isenga, Breneman,
and BasketPong fails to teach or suggest “wherein the plurality of cup
holders are disposed in a triangular formation on the game board and
configured for cups to be placed adjacent to one another on the game board,”
as recited in claim 6. Br. 10-11. According to Appellants, the plain and
ordinary meaning of “adjacent” is “‘next to’ or ‘adjoining something else.’”
Br. 11. Appellants argue BasketPong teaches “that there is no cup next to
either side, or above, or below, another cup” and, therefore, fails to teach or
suggest that the plurality of cup holders are configured for cups to be placed
adjacent to one another on the game board, as required by claim 6. Id.
We do not find Appellants’ contention persuasive. As found by the
Examiner, Cappuccio teaches a game board having a plurality of cup holders
and that the plurality of cup holders may be arranged in any desired manner.
Final Act. 8—9 (citing Cappuccio 5:38-44). As also found by the Examiner,
BasketPong teaches a game board having a plurality of cup holders disposed
in a triangular formation on the game board. Final Act. 9. We agree with
the Examiner that “[t]he cups taught by [BasketPong] are near each other
with no other intervening elements between them” and, therefore,
BasketPong teaches or suggests that the cup holders are configured for cups
to be placed adjacent to one another on the game board, as required by claim
6. Ans. 5. As such, the combination of Cappuccio and BasketPong teaches
or suggests the disputed limitation.
Accordingly, we are not persuaded the Examiner erred in rejecting
claim 6.
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DECISION
We affirm the Examiner’s rejection of claims 1 and 3—9 under 35
U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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