Barnes, Aaron

Patent Trials and Appeals Board

May 27, 2020

2019000250 (P.T.A.B. May. 27, 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.
14/860,272 09/21/2015 Aaron Barnes 5094.01US02 1195
87197 7590 05/27/2020
Skaar Ulbrich Macari, P.A.
601 Carlson Parkway
Suite 1050
Minneapolis, MN 55305
EXAMINER
KLAYMAN, AMIR ARIE
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
05/27/2020 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):
pto@sumiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte AARON BARNES
____________

Appeal 2019-000250
Application 14/860,272
Technology Center 3700
____________

Before MICHAEL L. HOELTER, JAMES P. CALVE, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–20. An oral hearing was held on May 14, 2020.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Aaron Barnes.
Appeal Br. 1.
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THE CLAIMED SUBJECT MATTER
Claims 1, 14, and 19 are independent. Claim 1 is reproduced below.
1. An indoor basketball game system, comprising:
a backboard, the backboard comprising a center section
having a front surface and a back surface, a first side section and
a second side section, the first side section disposed along a first
vertical side edge of the center section and the second side
section disposed along an opposing second vertical side edge of
the center section, each of the first side section and the second
side section being coupled to the center section to pivot with
respect to the center section about a vertical axis, the first section
adapted to pivot greater than 90 degrees with respect to the center
section to enable an off-center arc of shooting;
a ball deflector coupled to the backboard, the ball deflector
comprising a center portion, a first arm and a second arm, the
first arm disposed along a first side edge of the center portion and
the second arm disposed along an opposing second side edge of
the center portion, each of the first arm and the second arm
coupled to the center portion to pivot with respect to the center
portion along a respective first side edge and second side edge of
the center portion, the first arm adapted to extend between the
first side section and center portion when the first side section is
angled 90 degrees or greater; and
a basketball hoop assembly disposed on the front surface
of the center section of the backboard, the hoop assembly
including a rim pivotably coupled to a mounting plate such that
the rim can be folded flat against the center section of the
backboard,
wherein the center portion of the ball deflector is secured
to the center section of the backboard such that a plane of the
center portion forms an angle of more than 90 degrees with
respect to the front surface of the backboard center portion.

EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
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Seals US 4,022,472 May 10, 1977
Hayes US 4,036,494 July 19, 1977
Wares US 4,869,502 Sept. 26, 1989
Brenner US 5,536,003 July 16, 1996
Tien US 6,224,504 B1 May 1, 2001
Zheng US 6,698,441 B1 Mar. 2, 2004
Morris US 7,086,189 B2 Aug. 8, 2006

REJECTIONS
I. Claims 1, 3, 6–8, 10–16, and 18 stand rejected under 35 U.S.C. § 103
as unpatentable over Zheng, Wares, and Tien. Non-Final Act. 2–12.
II. Claims 2 and 17 stand rejected under 35 U.S.C. § 103 as unpatentable
over Zheng, Wares, Tien, and Morris. Id. at 12–13.
III. Claims 4 and 5 stand rejected under 35 U.S.C. § 103 as unpatentable
over Zheng, Wares, Tien, and Seals. Id. at 14–15.
IV. Claim 9 stands rejected under 35 U.S.C. § 103 as unpatentable over
Zheng, Wares, Tien, and Brenner. Id. at 15–16.
V. Claim 19 stands rejected under 35 U.S.C. § 103 as unpatentable over
Zheng and Hayes. Id. at 16–18.
VI. Claim 19 stands rejected under 35 U.S.C. § 103 as unpatentable over
Zheng, Tien, and Hayes. Id. at 16–18.
VII. Claim 20 stands rejected under 35 U.S.C. § 103 as unpatentable over
Zheng, Hayes, and Wares. Id. at 18–19.
VIII. Claim 20 stands rejected under 35 U.S.C. § 103 as unpatentable over
Zheng, Tien, Hayes, and Wares. Id. at 18–19.

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OPINION
Rejection I
The Examiner relies on Zheng to teach many of the limitations of
independent claim 1, including, among other things, a ball deflector. Non-
Final Act. 3. In particular, the Examiner finds that Zheng teaches “ball
deflector (additional panel 60) coupled to the backboard (to its center section
via side 66) . . . , the ball deflector comprising a center portion, a first arm
and a second arm (side edges/brinks/flanges of the panel).” Id. (citing
Zheng 4:19–34, Figs. 1, 3A) (boldface omitted). The Examiner
acknowledges that:
Zheng does not disclose each of the first arm and the second arm
coupled to the center portion to pivot with respect to the center
portion along a respective first side edge and second side edge of
the center portion, the first arm adapted to extend between the
first side section and center portion when the first side section is
angled 90 degrees or greater.
Id. at 4. The Examiner finds that Wares teaches “each of the first arm and
the second arm coupled to the center portion to pivot with respect to the
center portion along a respective first side edge and second side edge of the
center portion” and “the first arm adapted to extend between the first side
section and center portion when the first side section is angled 90 degrees or
greater (44[]L and 44R cantilevered panels, which are at inclined angle
relative to track assembly 42).” Id. at 4–5 (citing Wares Figs. 1, 6, 5:55–
6:40). The Examiner concludes that it would have been obvious to one of
ordinary skill in the art
to form Zheng’s device wherein each of the first arm and the
second arm coupled to the center portion to pivot with respect to
the center portion along a respective first side edge and second
side edge of the center portion, the first arm adapted to extend
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between the first side section and center portion when the first
side section is angled 90 degrees or greater as taught by Wares
for the reason that a skilled artisan would have been motivated
by the explicit suggestion of the prior art to use a ball deflector
with side arms that are in an angle more than 90 degrees from a
center portion.
Id. at 5 (emphasis added).
Appellant argues that “[i]t is quite unreasonable to contend that the
continuous outer perimeter frame of [Zheng’s] fabric panel is an ‘arm.’”
Appeal Br. 17; see also Reply Br. 6 (referencing Merriam-Webster
Dictionary’s definition of “arm” as “a slender part of a structure, machine, or
an instrument projecting from a main part, axis, or fulcrum” and arguing that
“[t]he edges of [Zheng’s] panel 60 are not arms . . . . [T]here are no parts of
panel 60 that project from an edge of the panel. In other words, no structure
extends beyond the border of the panel 60.”). The Examiner responds that
“each edge/side/flange of Zheng’s ball deflector 60, reasonably can be
construed as an arm, as being a slender part of a structure projecting from a
main part.” Ans. 13 (including Examiner-annotated version of Fig. 1 of
Zheng with arrows pointing to the edges of Zheng’s deflector panel 60).
We agree with Appellant that Zheng’s deflector panel lacks arms in
that it is unreasonable to consider the side edges of Zheng’s deflector panel
60 as projecting from a main part of the fabric panel. Nor are the side edges
“adapted to extend between the first side section and center portion when the
first side section is angled 90 degrees or greater” as claimed. Appellant’s
Specification describes the arms as “opposing side wings or arms 122 and
124” that are preferably about twelve inches wide, securable to a respective
side panel 110 and 112 of the backboard 102, and foldable. Spec. 7:8–19,
9:1–6, Figs. 4, 8.
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Because Zheng lacks arms when considering the broadest reasonable
interpretation of this term in light of its plain meaning consistent with the
Specification, and the full claim language, the Examiner’s rejection, which
relies on the modification of Zheng’s purported arms so as to be pivotable
and disposed at an angle as taught by Wares (Non-Final Act. 5, 6–7), is
based on an erroneous finding as to the scope and content of Zheng and must
fail.
Moreover, Appellant argues that “Wares does not teach the first arm
adapted to extend between the first side section and center portion when the
first side section is angled 90 degrees or greater.” Appeal Br. 18 (boldface
omitted). In particular, Appellant argues that “[t]he sides 44L and 44R of
the trough 42 in Wares cannot extend towards a side section of the
backboard as there are no side sections of the backboard to extend toward”
and “[t]he sides 44L and 44R are not even shown to extend beyond the
vertical sides of the backboard 100.” Id. Appellant maintains that “Wares
clearly cannot be said to disclose Appellant’s claimed feature of the arm of
the deflector adapted to extend between the first side section of the
backboard and center portion of the deflector when the first side section of
the backboard is angled 90 degrees or greater.” Id. We agree with
Appellant that Wares does not teach the claimed limitation.
Even if the Examiner has explained how Wares teaches a deflector
having arms that can be positioned at an angle of 90 degrees or more relative
to a center portion of the deflector (Non-Final Act. 4–5 (explaining that
cantilevered panels 44L, 44R “are at an inclined angle relative to track
assembly 42”; Wares Fig. 1), the Examiner has not explained adequately
how Wares teaches a deflector having an arm adapted to extend between the
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center portion of the deflector and a first side section of the backboard when
the first side section of the backboard is angled 90 degrees or greater, as
required by independent claim 1. In particular, Wares lacks side sections
(let alone pivoting side sections) as part of its backboard, and instead
contemplates attachment of its identified deflector arms 44L, 44R to cross
bar 20 of frame 12 disposed on a traditional flat backboard. The Examiner
has not explained adequately how Wares teaches cantilevered panels 44L,
44R that are adapted to extend from a center portion of a deflector to a side
section of a backboard that is angled greater than 90 degrees relative to a
center section of a backboard.
In sum, the Examiner has not adequately supported the finding that
Wares teaches cantilevered panels 44L, 44R that are adapted to extend to a
side section of a backboard when the side section of the backboard is angled
90 degrees or greater relative to a center section of the backboard.
Consequently, the Examiner’s conclusion of obviousness is also erroneous
because it is based on an insufficiently supported finding as to the scope and
content of Wares.
The Examiner also made findings, among other things, that although
Zheng “is not specific regarding his basketball hoop assembly including a
rim pivotably coupled to a mounting plate such that the rim can be folded
flat against the center section of the backboard (Non-Final Act. 4), “Tien
discloses a basketball hoop assembly disposed on a front surface of a center
section of a backboard, the hoop assembly including a rim pivotably coupled
to a mounting plate such that the rim can be folded flat against the center
section of the backboard” (id. at 7) (citing Tien Figs. 2, 4, 2:55–57). The
Examiner concludes that it would have been obvious “to form Zheng’s hoop
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assembly to pivot and fold[] as taught by Tien for the reason that a skilled
artisan would have been motivated by Tien’s suggestion to include such
pivot/foldable hoop within the basketball system that can be folded while the
basketball system is not in use for storage and/or transportation of the
assembly.” Id. at 7–8.
Appellant argues that the Examiner has not adequately explained how
the cited prior art teaches “a rim pivotably coupled to a mounting plate.”
Appeal Br. 19. More specifically, Appellant argues that although “Tien
mentions that the ‘basket 13 is pivotally mounted on the backboard 14 so
that the basket can be folded on the backboard 14 when not in use,’” “there
is no mention of the rim portion of the ba[sket] being able to pivot with
respect to its mounting plate.” Id. Appellant continues that “Tien’s figures
fail to show any sort of hinge or other structure that would enable the
pivoting of the rim with respect to the mounting plate” and “[m]ost likely,
the entire basket 13, including the mounting plate, pivots with respect to the
backboard because that is exactly how Tien describes the basket
functioning.” Id. In other words, Appellant argues that “the rim of Tien is
welded to the mounting plate so that Appellant’s pivoting could not occur.”
Id.; see also Reply Br. 6 (“the rim appears to be welded directly to the
mounting plate as best can be discerned from [Tien’s] FIG. 4.”). The
Examiner responds by identifying Tien’s mounting plate and rim in an
Examiner-annotated drawing and explaining that “it is clear that the
mounting bracket of Tien[] is connected to the backboard and it is also very
clear that Tien’s rim is folded, against a section of the backboard, while not
in use.” Ans. 15.
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An Examiner’s factual finding regarding what a reference discloses
must be supported by a preponderance of the evidence. In re Caveney, 761
F.2d 671, 674 (Fed. Cir. 1985). In order to satisfy this standard, the
evidence must demonstrate that it is more likely than not that the alleged
facts are actually true. See Bosies v. Benedict, 27 F.3d 539, 542 (Fed. Cir.
1994) (noting that the preponderance of the evidence standard requires the
fact finder ‘to believe that the existence of a fact is more probable than its
nonexistence.
“The Patent Office has the initial duty of supplying the factual basis
for its rejection. It may not . . . resort to speculation, unfounded assumptions
or hindsight reconstruction to supply deficiencies” in the cited references. In
re Warner, 379 F.2d 1011, 1017 (CCPA 1967); see In re GPAC, Inc., 57
F.3d 1573, 1582 (Fed. Cir. 1995). The Examiner is correct that Tien teaches
that basket 13 is pivotally mounted on backboard 14 so that backet 13 can be
folded on backboard 14 when not in use. Final Act. 7 (citing Tien, 2:55–57,
Figs. 2, 4). However, as Appellant argues, Figure 4 of Tien illustrates the
rim attached to a mounting plate without any apparent means for the rim to
pivot relative to the mounting plate. On this record, one of ordinary skill in
the art can only speculate as to whether Tien’s rim is pivotably coupled to a
mounting plate as required by the claim, and as per the instructions above,
such speculation is insufficient to support the rejection.
With respect to independent claim 14, the Examiner relies on the same
findings made in connection with independent claim 1. Non-Final Act. 11.
Thus, the rejection of claim 14 relies on the Examiner’s same erroneous
finding that Zheng discloses arms that can then be modified so as to be
pivotable and disposed at angle as taught by Wares, as well as the same
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speculative finding that Tien discloses a rim pivotably coupled to a
mounting plate.
For the foregoing reasons, we are persuaded that the Examiner erred
in concluding that the combination of Zheng, Wares, and Tien renders
obvious the subject matter of independent claims 1 and 14. Accordingly, we
do not sustain the rejection of independent claims 1 and 14, and claims 3, 6–
8, 10–13, 15, 16, and 18 depending therefrom, under 35 U.S.C. § 103 as
unpatentable over Zheng, Wares, and Tien.
Rejections II, III, and IV
Claims 2, 4, 5, and 9 depend from independent claim 1, and claim 17
depends from independent claim 14. Appeal Br. 26–28 (Claims App.).
Claims 2 and 17 stand rejected under 35 U.S.C. § 103 as unpatentable over
Zheng, Wares, Tien, and Morris. Non-Final Act. 12–13. Claims 4 and 5
stand rejected under 35 U.S.C. § 103 as unpatentable over Zheng, Wares,
Tien, and Seals. Id. at 14–15. Claim 9 stands rejected under 35 U.S.C.
§ 103 as unpatentable over Zheng, Wares, Tien, and Brenner. Id. at 15–16.
The rejections of these claims rely on the Examiner’s erroneous finding that
Zheng discloses arms that can then be modified so as to be pivotable and
disposed at angle as taught by Wares, as well as the speculative finding that
Tien discloses a rim pivotably coupled to a mounting plate. Id. at 12–16.
The rejections of claims 2, 4, 5, and 9 also rely on the Examiner’s
insufficiently supported finding that Wares teaches arms on a deflector panel
that are adapted to extend to a side section of a backboard when the side
section of the backboard is angled 90 degrees or greater relative to a center
section of the backboard. Id. at 12–13.
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The Examiner does not explain how Morris, Seals, and/or Brenner
might cure these underlying deficiencies. Accordingly, we do not sustain
the rejections, under 35 U.S.C. § 103, of: claims 2 and 17 as unpatentable
over Zheng, Wares, Tien, and Morris, claims 4 and 5 as unpatentable over
Zheng, Wares, Tien, and Seals, and claim 9 as unpatentable over Zheng,
Wares, Tien, and Brenner.
Rejections V and VI
With respect to independent claim 19, the Examiner relies in part on
the same findings made in connection with independent claim 1. Non-Final
Act. 16–18. In particular, the Examiner states that “[w]ith respect to the
positions of the side section angled greater than 90 degrees, note the
[E]xaminer discussion with respect to claim 1.” Id. at 17. In connection
with claim 1, the Examiner states “with respect to the first section adapted to
pivot greater than 90 degrees with respect to the center section to enable off-
center arc shooting, Zheng discloses that stitching 50 is acting as a hinge[]
(col. 4, lines 15+) that allows the movement of panels 22 and 26 (Fig. 2B in
conjunction to Fig. 3A as well as col. 4, line 8+).” Id. at 8.2

2 The Examiner sets forth an alternative position that “Tien discloses [a] first
section adapted to pivot greater than 90 degrees with respect to the center
section to enable off-center arc shooting (hinged doors 12 that are pivot[ing]
more than 90 degrees relative to center/device 11)[ ](Figs. 2, 4 and 5; 2:36–
62)” and concludes that it would have been obvious to modify Zheng’s first
section to be adapted to pivot more than 90 degrees as taught by Tien as a
“known technique to improve [a] similar device in the same way to provide
means that can facilitate rebounding of a basketball as well as means
suitable to be folded when the device is not in use.” Non-Final Act. 8–9.
We note that we do not address this alternative basis, or Appellant’s
arguments in response thereto, because we affirm the Examiner’s rejection
on the basis that the relevant teaching is found in Zheng as explained herein.
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The Examiner also acknowledges that “Zheng does not disclose a
plurality of fasteners extending through the backboard center section for
securing the basketball hoop assembly to the backboard section.” Non-Final
Act. 17. The Examiner, however, finds that “in [a] similar field of
basketball systems devices, Hayes discloses a plurality of fasteners
extending through the backboard center section (central panel 12) for
securing the basketball hoop assembly (18) to the backboard section.” Id.
(citing Hayes Fig. 1, 2:35+). The Examiner concludes that it would have
been obvious “to form Zheng’s [device] to include a plurality of fasteners
extending through the backboard center section for securing the basketball
hoop assembly to the backboard section as taught by Hayes” in order “to use
known means . . . to secure a hoop means to a basketball means thus
allowing a complete device configure[d] to receive a thrown basketball
thereto while the device is in the use position.” Id.
Appellant first argues that “neither Zheng nor Tien can be said to
disclose this feature [of the first side section of the backboard adapted to be
angled greater than 90 degrees with respect to the center section to enable an
off-center arc of shooting].” Appeal Br. 23. More particularly, Appellant
argues that “the side panels [of Zheng] cannot be pivoted greater than 90
degrees with respect to the center section to enable an off-center arc of
shooting” because “the side panels are always maintained at a ninety degree
angle with respect to the center panel 24” for the purpose of “securing the
side panels 22 and 26 to [deflector] panel 60 with attachment mechanisms
70 and 72” in light of “the lack of rigidity of the fabric panels comprising the
structure.” Id. at 13 (emphasis omitted). Appellant takes the position that
“Zheng is not capable of the alleged functional characteristic due to the
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necessity of securing the side panels to the deflector panel” and moreover,
the claims “recite a structural feature.” Id. at 14.
The Examiner responds that “as shown in Fig. 3A . . . , it clearly can
be noted that the side panels (such as panel 22) freely can pivot-rotate, more
than 90º, relative to center panel 24.” Ans. 4 (citing Zheng Fig. 3A and, in
particular, its arrow notation adjacent side panel 22 that indicates the
capacity for rotating movement in both clockwise and counter-clockwise
directions). Moreover, the Examiner responds that “panel 60 is an additional
structure, that doesn’t govern the pivot manner of the side panels relative to
the center panel, and the Velcro are merely connection means between the
ball deflector and the backboard (which is similar, equivalent to
[A]ppellant’s Velcro, which perform the same).” Id. at 5. We agree with
the Examiner’s above response and find that the Examiner has supported by
a preponderance of the evidence that Zheng’s side panels 22, 26 are adapted
to pivot greater than 90 degrees with respect to center section 24 to enable
off-center arc of shooting. See Non-Final Act. 8; Ans. 3–6. Moreover,
although Zheng teaches use of removable attachment mechanisms such as
VELCRO™ straps 70, 72 to secure the side panels of the backboard
structure to the perimeter of deflector panel 60 (Appeal Br. 13 (citing Zheng
4:35–38)), Zheng does not suggest that such attachment mechanisms are
necessary for operation in that Zheng merely describes that such attachment
mechanisms “can be provided.” Zheng 4:35–38.
We have also considered Appellant’s argument that “Zheng’s
structure . . . cannot be used without the side panels 22 and 26 fastened
securely to the deflector panel 60 given the lack of rigidity of the fabric
structure.” Appeal Br. 13 (underlining omitted) (citing Zheng 4:60–5:5 as
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suggesting that “coupling of the side panels 22 and 26 to the deflector panel
60 provides important lateral support to prevent tipping or toppling of the
structure.”). Zheng, however, more precisely contemplates that panel 60
itself can be “used as a support mechanism to provide stability to the three
panels 22, 24, 26” and that it is “without the panel 60, [that] the three panels
22, 24, 26 may be susceptible to being tipped or toppled.” Zheng 4:60–63.
Thus, we are not persuaded that pivoting Zheng’s backboard side sections
greater than 90 degrees relative to the center section of the backboard would
somehow result in tipping or toppling of the structure in that there would
still be three panels and a deflector panel to act as a support mechanism.
Appellant also argues that “there can be no motivation to combine the
fasteners of Hayes with the structure of Zheng” because “[t]he backboard of
Zheng is made from fabric panels” and “[t]here is no teaching or suggestion
of how the fasteners of Hayes would be secured to Zheng’s fabric panels
without some additional experimentation.” Appeal Br. 23. Moreover,
Appellant argues that “the use of mechanical fasteners . . . would render
[Zheng] inoperable, as the Zheng device is designed to be folded into a
compact configuration and the use of mechanical fasteners would prevent
the device from being folded, and may rip or tear the fabric,” thereby
rendering Zheng unsatisfactory for its intended purpose. Id. (citing In re
Gordon, 733 F.2d 900 (Fed. Cir. 1984)). Appellant also argues that
“[r]egarding Tien, the use of the Hayes fasteners may interfere with the
pivotability of the basket.” Id.
The Examiner responds that “Zheng is not specific to the manner of
connecting the hoop to the backboard,” but “[i]t is well known in the art (as
taught for example by Hayes) to use fasteners extending through the
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backboard to the hoop, to [e]nsure a firm and safe connection between the
backboard and the hoop.” Ans. 22–23. The Examiner further responds that
“[t]here is nothing preventing, or allegedly [rendering] inoperable, by
including mechanical fasteners within Zheng, to connect the backboard to
the hoop, in a well-known and a conventional manner, to insure that the
hoop is firmly and safely connected thereto.” Id. at 23.
Appellant replies that “[i]t is common sense that one would not
attempt to use mechanical fasteners, such as in Hayes, to secure the hoop’s
bracket to a flexible fabric such as used in Zheng” as “[t]he fasteners would
likely rip through the fabric and the hoop would droop downward because
the fabric is not stiff enough to support the hoop’s weight while remaining
flexible enough to fold and twist.” Reply Br. 10. Appellant further replies
that “Zheng even appears to show the hoop 80 mounted to a separate panel
rather than through the fabric backboard 24.” Id.
Claim 19 requires that the basketball hoop assembly be secured to the
backboard center section via a plurality of fasteners extending through the
backboard center section. Appeal Br. 29 (Claims App.). Although Zheng’s
center section 24 has hoop assembly 80 (Zheng Fig. 1), Zheng is silent
regarding how hoop assembly 80 is connected to center panel 24. See id. at
4:49–51 (“The structure 20 in [Zheng’s] FIG 1 can be used as a play
structure by providing a hoop or basket 80 on the fabric 42 of the rear panel
24 on the interior-facing side of the fabric.”). Here, the Examiner relies on
Hayes for its general teachings regarding fasteners for securing basketball
hoop assembly 18 to central panel 12. Non-Final Act. 17 (citing Hayes Fig.
1; 2:35+). Although Hayes appears to use fasteners in connection with a
rigid central panel rather than a fabric panel, an artisan is not compelled to
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blindly follow the teaching of one prior art reference over the other without
the exercise of independent judgment. Lear Siegler Inc. v. Aeroquip Corp.,
733 F.2d 881, 889 (Fed. Cir. 1984). Some adaptation of Hayes’ fasteners
may be required for fastening a hoop to fabric and/or to ensure foldability
and pivotability, but Appellant has not provided any persuasive evidence or
technical reasoning that the Examiner’s proposed modification of Zheng’s
indoor basketball hoop (with or without the teachings of Tien) with fasteners
would have been beyond the level of ordinary skill in the art or
unpredictable to a person of ordinary skill in the art. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of ordinary skill is also a
person of ordinary creativity, not an automaton.”).
Moreover, Appellant acknowledges that “Zheng even appears to show
the hoop 80 mounted to a separate panel rather than through the fabric
backboard 24.” Reply Br. 10. Thus, to the extent that Zheng’s hoop may be
mounted to a separate panel within Zheng’s center section 24, with such a
separate panel potentially made of a more rigid material than the
surrounding fabric, the applicability of Hayes’ fasteners is even more
apparent. We note that the claim does not preclude such a separate panel
from being a portion of the claimed backboard center section through which
fasteners extend to secure a basketball hoop.
For the foregoing reasons, we are not persuaded that the Examiner
erred in concluding that the combination of Zheng and Hayes, either with or
without Tien, renders obvious the subject matter of independent claim 19.
Accordingly, we sustain the rejection of independent claim 19 under
35 U.S.C. § 103 as unpatentable over Zheng and Hayes, either with or
without Tien.
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Rejections VII and VIII
Dependent claim 20 further recites:
securing a first arm to the ball deflector along a first side
edge of the ball deflector such that the first arm can pivot with
respect to the ball deflector more than 90 degrees while
maintaining contact with the first side section of the backboard;
securing a second arm to the ball deflector along a second
side edge of the ball deflector such that the second arm can pivot
with respect to the ball deflector;
securing a the first arm to the first side section; and
securing the second arm to the second side section.
Appeal Br. 29 (Claims App.) (emphasis added).
The Examiner finds that “Wares discloses each of the first arm and the
second arm coupled to the center portion to pivot with respect to the center
portion along a respective first side edge and second side edge of the center
portion, the first arm adapted to extend between the first side section and
center portion when the first side section is angled 90 degrees or greater (44
L and 44R cantilevered panels, which are at inclined angle relative to track
assembly 42).” Non-Final Act. 18 (citing Wares Figs. 1, 6; 5:55-6:40). The
Examiner concludes that it would have been obvious “to form Zheng’s
device wherein . . . the first arm [is] adapted to extend between the first side
section and center portion when the first side section is angled 90 degrees or
greater as taught by Wares for the reason discussed above with respect to
claim 1.” Id. at 18–19.
For the same reasons as discussed above in connection with
Rejection I, the Examiner’s rejection relies on the Examiner’s erroneous
finding that Zheng discloses arms that can then be modified so as to be
pivotable and disposed at an angle as taught by Wares. Non-Final Act. 18–
19. Moreover, for the same reasons as discussed above in connection with
Appeal 2019-000250
Application 14/860,272

18
Rejection I, the Examiner has not supported adequately the finding that
Wares teaches cantilevered panels 44L, 44R that are adapted to extend to a
side section of a backboard when the side section of the backboard is angled
90 degrees or greater relative to the backboard’s center section. Instead, the
Examiner has merely pointed out that Wares’ deflector has first and second
arms that can pivot with respect to Wares’ deflector center portion (Non-
Final Act. 18 (referencing “44L and 44R cantilevered panels, which are at an
inclined angle relative to track assembly 42) (citing Wares Figs. 1, 6; 5:55–
6:40)), not that they can pivot so as to extend to and maintain contact with
the first side section of the backboard when the side section of the backboard
is angled 90 degrees or greater relative to the backboard’s center section.
Consequently, the Examiner’s conclusion of obviousness is also based on an
insufficiently supported finding as to the scope and content of Wares.
For the foregoing reasons, we are persuaded that the Examiner erred
in concluding that the combination of Zheng, Hayes, and Wares, with or
without Tien, renders obvious the subject matter of dependent claim 20.
Accordingly, we do not sustain the rejection of claim 20 under 35 U.S.C.
§ 103 as unpatentable over Zheng, Hayes, and Wares, either with or without
Tien.

CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 3, 6–8,
10–16, 18
103 Zheng, Wares, Tien 1, 3, 6–8,
10–16, 18
2, 17 103 Zheng, Wares, Tien,
Morris
2, 17
Appeal 2019-000250
Application 14/860,272

19
Claims
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
4, 5 103 Zheng, Wares, Tien, Seals 4, 5
9 103 Zheng, Wares, Tien,
Brenner
9
19 103 Zheng, Hayes 19
19 103 Zheng, Tien, Hayes 19
20 103 Zheng, Hayes, Wares 20
20 103 Zheng, Tien, Hayes,
Wares
20
Overall
Outcome
19 1–18, 20

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 IN PART