Schlangen, Jacob

Patent Trials and Appeals BoardSep 10, 2020

2019005116 (P.T.A.B. Sep. 10, 2020)

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. 15/373,299 12/08/2016 Jacob Schlangen A127.2P-17128-US02 6989 490 7590 09/10/2020 VIDAS, ARRETT & STEINKRAUS, P.A. Richard A. Arrett 8050 Washington Ave. S. SUITE 100 Eden Prairie, MN 55344 EXAMINER GRAHAM, MARK S ART UNIT PAPER NUMBER 3711 NOTIFICATION DATE DELIVERY MODE 09/10/2020 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): mail@vaslaw.com rarrett@vaslaw.com rleaf@vaslaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JACOB SCHLANGEN Appeal 2019-005116 Application 15/373,299 Technology Center 3700 Before BENJAMIN D. M. WOOD, FREDERICK C. LANEY, and BRENT M. DOUGAL, Administrative Patent Judges. WOOD, 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, 3–5, 7–12, and 14–20. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to the applicant as defined by 37 C.F.R. § 1.42. Appellant identifies the real party in interest as the named inventor, Jacob Schlangen. Appeal Br. 3. Appeal 2019-005116 Application 15/373,299 2 CLAIMED SUBJECT MATTER The claims are directed to an archery target having a replaceable cube core. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An archery target comprising: a target frame formed with a replaceable core receptacle; a replaceable core formed to fit within said replaceable core receptacle, wherein said replaceable core is formed as a cube with six sides with a portion of the replaceable core protruding from a back side of the target frame. REFERENCES Name Reference Date Pulkrabek US 2004/0140623 A1 July 22, 2004 Walker US 2011/0024986 A1 Feb. 3, 2011 McGovern US 2012/0080848 A1 Apr. 5, 2012 REJECTIONS Claims Rejected 35 U.S.C. § Reference(s)/Basis 1, 9, 16, 19, 20 102 Walker 3, 5, 7, 8, 10, 12, 14, 15, 17 103 Walker, McGovern 4, 11, 18 103 Walker, McGovern, Pulkrabek OPINION A. Claims 1, 9, 16, 19, and 20: Rejected as Anticipated by Walker Appellant argues claims 1, 9, 16, 19, and 20 as a group. Appeal Br. 7–9. We select claim 1 as representative of the group, and decide the appeal of these claims on the basis of claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv). The Examiner relies on the embodiment depicted in Figure 10 of Walker as anticipating claim 1, and specifically finds that target block Appeal 2019-005116 Application 15/373,299 3 member 506 corresponds to the claimed target frame, inner component 502 corresponds to the replaceable cubic core, and target block member 504 corresponds to the claimed support base. Final Act. 2 (citing Walker ¶ 44); see also Walker ¶ 76, Fig. 10. Appellant’s primary argument in support of the patentability of claim 1 is that target block 506 does not correspond to the claimed target frame. Appeal Br. 7. Appellant asserts, instead, that target blocks 506 and 504 must be considered two halves of a single target frame. Id. (citing Walker ¶¶ 76– 77, Fig. 10. According to Appellant, [b]ecause the target is actually made of two halves, which surround the core, the core 502 does not PROTRUDE from the back side of the target frame as asserted by the Examiner.” Id. at 8. The Examiner responds that: A frame, as used in the context of appellant's application, and the prior art rejection, is “an open case or structure made for admitting, enclosing or supporting something”, (Webster's Ninth New Collegiate Dictionary). As can be seen in Fig. 10 of Walker, element 506 is an open case for admitting, enclosing and supporting replaceable core 502 which protrudes out of one side of element 506. Walker's element 506, which it is understood is the back portion of the target in Walker's parlance, clearly meets the limitation of a frame as claimed. That appellant would like to term both elements 506 and 504 as Walker's frame is irrelevant to the fact that element 506 in and of itself is a frame with two sides, out of one of which protrudes core 502. As noted by the examiner, for purposes of the rejection the side of frame 506 out of which the core 502 protrudes is considered the back side of the target frame. Ans. 3. Appellant counters in the Reply Brief that “Walker makes it abundantly clear that the inner component is contained within the target block,” and therefore does not disclose that a portion of the replaceable core Appeal 2019-005116 Application 15/373,299 4 protrudes from a back side of the target frame. Reply Br. 3 (citing Walker ¶ 76). This argument is not persuasive of Examiner error. Appellant does not dispute the Examiner’s construction of “frame” as “an open case or structure made for admitting, enclosing or supporting something.” Nor does Appellant argue that “target frame” has a specialized meaning in the art beyond a “structure made for admitting, enclosing, or supporting,” a “target.” Finally, Appellant does not dispute that Walker’s target block 506 is a target frame under the Examiner’s construction of the term, or that inner component 502 protrudes out the back side of target block 506. Nor is it self-evidence that target block 506 could not be a target frame. For example, as depicted in Figure 10 of Walker, target block 506 appears configured to at least partially “admit” or “support” inner component 502. To the extent that Appellant believes that target block 506 does not resemble the specific target-frame embodiments depicted in the Specification, claim 1 is written broadly and is not limited to any of the specific embodiments disclosed. See Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1347 (Fed.Cir.2009) (the argument that prior art did not anticipate the claim “is unpersuasive because claim 7 is written broadly and is not limited to PAA treatment in a meat processing plant.”). Because we are not persuaded that the Examiner erred in finding that Walker anticipates claim 1, we sustain the Examiner’s rejection of claims 1, 9, 16, 19, and 20 as anticipated by Walker. B. Remaining Rejections Each of the claims subject to the remaining rejections—claims 3–5, 7, 8, 10–12, 14, 15, and 18—ultimately depends from one of independent Appeal 2019-005116 Application 15/373,299 5 claims 1, 9, and 16, and each of the independent claims contains the target- frame limitation discussed above. Appeal Br. 12–14. Appellant relies on its argument that Walker fails to teach the claimed target frame to support the patentability of the dependent claims subject to these rejections. Because, as discussed above, we are not persuaded that the Examiner erred in finding that Walker teaches the claimed target frame, we sustain the Examiner’s rejection of claims 3, 5, 7, 8, 10, 12, 14, 15, and 17 as unpatentable over Walker and McGovern, and of claims 4, 11, and 18 as unpatentable over Walker, McGovern, and Pulkrabek. CONCLUSION The Examiner’s rejections are affirmed, as follows: DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1,9,16, 19, 20 102 Walker 1, 9, 16, 19, 20 3, 5, 7, 8, 10, 12, 14, 15, 17 103 Walker, McGovern 3, 5, 7, 8, 10, 12, 14, 15, 17 4, 11, 18 103 Walker, McGovern, Pulkrabek 4, 11, 18 Overall Outcome 1, 3–5, 7– 12, 14–20 Appeal 2019-005116 Application 15/373,299 6 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