Kelly Stouffer

Patent Trials and Appeals Board

Jan 25, 2022

2021002482 (P.T.A.B. Jan. 25, 2022)

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. 16/293,967 03/06/2019 Kelly Wayne Stouffer 1014/2 UTIL 4878 115007 7590 01/25/2022 NK Patent Law 4917 Waters Edge Dr. Suite 275 Raleigh, NC 27606 EXAMINER ARYANPOUR, MITRA ART UNIT PAPER NUMBER 3711 NOTIFICATION DATE DELIVERY MODE 01/25/2022 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): docket@nkpatentlaw.com eofficeaction@appcoll.com usptomail@nkpatentlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KELLY WAYNE STOUFFER Appeal 2021-002482 Application 16/293,967 Technology Center 3700 Before JENNIFER D. BAHR, STEFAN STAICOVICI, and LISA M. GUIJT, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-6, 9, and 11. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Kelly Wayne Stouffer. Appeal Br. 2. Appeal 2021-002482 Application 16/293,967 2 CLAIMED SUBJECT MATTER Appellant’s invention is directed to “garments and equipment for sports throw training where the user’s hand is visible to monitor hand and ball movement.” Spec. 1. Claim 1, reproduced below, is illustrative of the claimed subject matter. 1. A garment for sports throw training, the garment comprising: a compression sleeve having an inlet into which a user inserts their arm, wherein the compression sleeve extends to a terminal end such that constant contact is formed with the user’s arm along an entire length of the compression sleeve in order to adhere the sleeve to the user’s arm, wherein the compression sleeve extends above the user’s elbow once the sleeve is installed on the user; a netting enclosure extending from an outlet end of the compression sleeve, the outlet end being on an opposing end from the terminal end of the compression sleeve; a collar defined about the outlet end of the compression sleeve at an intersection of the outlet end and the compression sleeve to secure the garment to the user’s wrist, wherein, the netting enclosure defines a mesh or gridded construction such that the user’s hand and a ball are visible within the netting enclosure. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Pozo US 10,369,400 B2 Aug. 6, 2019 Smith US 2004/0228803 A1 Nov. 18, 2004 Hadash US 2009/0000002 A1 Jan. 1, 2009 Dowdell US 2011/0152012 A1 June 23, 2011 Appeal 2021-002482 Application 16/293,967 3 REJECTIONS Claims 1, 3, 5, 6, 9, and 11 stand rejected under 35 U.S.C. § 103 as being unpatentable over Pozo and Dowdell. Claim 2 stands rejected under 35 U.S.C. § 103 as being unpatentable over Pozo, Dowdell, and Smith. Claim 4 stands rejected under 35 U.S.C. § 103 as being unpatentable over Pozo, Dowdell, and Hadash. OPINION Obviousness-Pozo and Dowdell Appellant groups claims 1, 3, 5, 6, 9, and 11 together in contesting the rejection based on Pozo and Dowdell. See Appeal Br. 4-8. We decide the appeal of this rejection on the basis of claim 1, and claims 3, 5, 6, 9, and 11 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (permitting the Board to select a single claim to decide the appeal as to a single ground of rejection of a group of claims argued together). The Examiner finds that “Pozo discloses the claimed device with the exception of the netting enclosure extending from an outlet end of the compression[] sleeve.” Final Act. 4. The Examiner determines that it would have been obvious to use “such a netting enclosure for Pozo’s throwing sleeve” because “Dowdell teaches that such an arrangement is [desirable] to have which allows a person to practice throwing a ball without the need for another person to catch and return the thrown ball and without the risk of causing property damage if a ball is thrown indoors.” Id. (citing Dowdell ¶¶ 13, 15). Appellant argues that the modification that the Examiner proposes would render Pozo’s device unsatisfactory for its intended purpose. Appeal Appeal 2021-002482 Application 16/293,967 4 Br. 5. In particular, Appellant submits that Pozo’s device “is intended for use in batting practice, practice scrimmage, fielding practice with batter hit balls, and in helping a player in throwing a ball accurately.” Id. at 6 (emphasis omitted). Appellant contends that providing a netting enclosure on Pozo’s weighted sleeve device would cause the ball released by the player wearing the sleeve to be trapped inside the netting enclosure, thereby making the sleeve device incapable of being used for batting practice, practice scrimmage, fielding practice, or for helping a player throw the ball accurately, thereby rendering Pozo’s device unsatisfactory for its intended purpose. Id. at 7. For essentially the same reasons, Appellant also contends that Pozo teaches away from the claimed invention. See id. at 8. For the reasons that follow, Appellant’s arguments are not persuasive. The primary objectives of Pozo’s device are “to provide an easy to use throwing aid for a variety of sports that use arm movements in play” and “to provide a device to strengthen an athlete’s throwing arm while using a regulation play size and weight ball.” Pozo 1:38-43. As the Examiner points out, providing a netting enclosure on Pozo’s weighted sleeve, as proposed in the rejection, would not deter Pozo’s device from achieving these objectives. See Ans. 7-11. Pozo’s weighted sleeve, provided with such a netting enclosure, would still function well as “a weighted throwing sleeve for training use in throwing sports.” See Pozo 1:12-14. Providing a netting enclosure at the end of the sleeve would allow the user to practice indoors without causing damage and without the need for either a second person to catch and return the ball or the user to retrieve the ball. See Dowdell ¶ 22. Additionally, the mesh construction of the netting would allow a coach or therapist to observe the thrower’s grasp and release of the Appeal 2021-002482 Application 16/293,967 5 ball and give the thrower feedback to improve the thrower’s throwing accuracy. See id. Although Pozo’s disclosure that a disadvantage of using weighted balls as arm strengthening training devices is that they cannot be used for batting practice, practice scrimmage, or fielding practice with batter hit balls (Pozo 2:48-51) may suggest that Pozo contemplates such possible applications of the weighted sleeve device, we agree with the Examiner that Pozo’s teachings are not restricted to a device “to be used solely when a user throws or pitches a ball during batting practice or fielding practice.” Ans. 9. Pozo does not teach away from providing a netting enclosure, as taught by Dowdell, to permit Pozo’s weighted sleeve device to be used for training indoors and without other players to catch and return the ball. A prior art reference is said to teach away from an applicant’s invention “when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). However, “a given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to combine.” Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006). In essence, the combination of Pozo and Dowdell proposed by the Examiner amounts to no more than the combination in one device of elements (a weighted sleeve and a netting or mesh enclosure) known in the prior art for use in throwing training devices to predictably attain the recognized advantages of each. An improvement that is nothing more than the predictable use of prior art elements according to their established Appeal 2021-002482 Application 16/293,967 6 functions is likely to be obvious. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). For the above reasons, Appellant fails to apprise us of error in the rejection of claim 1 as being unpatentable over Pozo and Dowdell. Accordingly, we sustain the rejection of claim 1, and of claims 3, 5, 6, 9, and 11, which fall with claim 1, as being unpatentable over Pozo and Dowdell. Obviousness-Pozo and Dowdell in view of Smith or Hadash Appellant relies solely on the arguments presented for claim 1 in contesting the rejections of claims 2 and 4. Appeal Br. 8. For the reasons discussed above, Appellant’s arguments fail to apprise us of error in the rejection of claim 1 and, likewise, fail to apprise us of error in the rejections of claims 2 and 4. Accordingly, we sustain the rejection of claim 2 as being unpatentable over Pozo, Dowdell, and Smith; and the rejection of claim 4 as being unpatentable over Pozo, Dowdell, and Hadash. CONCLUSION The Examiner’s rejections of claims 1-6, 9, and 11 are AFFIRMED. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 5, 6, 9, 11 103 Pozo, Dowdell 1, 3, 5, 6, 9, 11 2 103 Pozo, Dowdell, Smith 2 4 103 Pozo, Dowdell, Hadash 4 Overall Outcome 1-6, 9, 11 Appeal 2021-002482 Application 16/293,967 7 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED