Ex Parte Cech

Board of Patent Appeals and Interferences

May 26, 2009

10947395 (B.P.A.I. May. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte FREDERICK CECH
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Appeal 2009-000250
Application 10/947,395
Technology Center 3700
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Decided:1 May 26, 2009
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Before TONI R. SCHEINER, ERIC GRIMES, and MELANIE L.
McCOLLUM, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a batting
tee. The Examiner has rejected the claims as anticipated or obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We reverse.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-000250
Application 10/947,395

STATEMENT OF THE CASE
Claims 1-4, 6-10, and 12 are pending and on appeal (App. Br.2 2).
We will focus on claims 1 and 7, which read as follows:
1. An articulated batting tee, comprising:
a first support post including a telescoping stem for height-adjustable
support of a baseball, and a ground support platform for resting said first
support post on the ground;
a mounting plate attached to said first support post, said mounting
plate including a pair of receptacles;
a lateral support assembly comprising a pair of parallel lateral struts
each inserted at one end into a corresponding receptacle of said pair on the
mounting plate;
a base plate;
a second support post mounted on said base plate;
a pivoting coupling mounted on said second support post, said
pivoting coupling including a pair of collars, another end of each of said
parallel lateral struts being slidably inserted into a corresponding collar of
said pair through said pivoting coupling for lateral adjustment;
whereby a combination of said height-adjustment, lateral adjustment
and pivoting provide a fully articulating batting tee that can position a ball
anywhere over or around said practice plate.
7. An articulated batting tee, comprising:
a first support post including a telescoping stem for height-adjustable
support of a baseball, said telescoping stem extending downwardly to a first
point of ground-support;
a mounting plate attached to said first support post, said mounting
plate including a pair of receptacles;

2 “App. Br.” refers to the Supplemental Appeal Brief filed January 2008.
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Appeal 2009-000250
Application 10/947,395

a lateral support assembly comprising a plurality of lateral struts
joined at one end to said receptacles of the mounting plate on said first
support post;
a second support post having a pivoting coupling mounted thereon,
said pivoting coupling having a plurality of collars each for slidably
supporting a corresponding one of said lateral struts; and
a practice plate, said second support post being pivotally coupled at
another end to said practice plate and thereby providing a second point of
ground-support;
whereby a combination of said height-adjustment, lateral adjustment
and pivoting provide a fully articulating batting tee that can position a ball
anywhere over or around said practice plate.
Claims 1 and 7 stand rejected under 35 U.S.C. § 102(b) as anticipated
by Prieto (US 5,388,823, Feb. 14, 1995) (Ans. 3).
Claims 2-4, 6-10, and 12 stand rejected under 35 U.S.C. § 103(a) as
obvious over Prieto (Ans. 4).
ANTICIPATION
The Examiner finds that Prieto discloses a batting tee as recited in
claims 1 and 7 (Ans. 3-5).
Appellant argues that “the Examiner errs in equating Appellant’s
pivoting coupling 19 with Prieto’s flat plate 27” (App. Br. 6). In particular,
Appellant argues:
To the extent that Appellant’s pivoting coupling 19 is equated
with Prieto’s flat plate 27, then Prieto is entirely lacking the rest
of the requisite structure, namely, said pivoting coupling
including a pair of collars, another end of each of said parallel
lateral struts being slidably inserted into a corresponding
collar of said pair through said pivoting coupling for lateral
adjustment.
(Id. at 6-7.)
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Appeal 2009-000250
Application 10/947,395

Issues
Did the Examiner set forth a prima facie case that Prieto discloses a
batting tee comprising a pair of lateral struts each slidably inserted into a
collar of a pair of collars included in a pivoting coupling, as recited in
claim 1?
Did the Examiner set forth a prima facie case that Prieto discloses a
batting tee comprising a pivoting coupling having a plurality of collars each
for slidably supporting a lateral strut, as recited in claim 7?
Findings of Fact
1. Prieto discloses an adjustable baseball batting tee comprising:
a plate member; a first elongated member extending from the
plate member; a second elongated member slidably and
rotatably positioned on the first elongated member and
extending cross-wise with respect to the first elongated
member, the second elongated member being slidable along a
length of the first elongated member and being rotatable with
respect to the first elongated member between at least first and
second positions; locking means for selectively locking the
second elongated member in the first and second positions; and
an upright member for supporting a ball, the upright member
being slidably mounted on the second elongated member so as
to be slidable along a length of the second elongated member.
(Prieto, col. 1, l. 56, to col. 2, l. 2.)
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Appeal 2009-000250
Application 10/947,395

2. Prieto Figure 2 is reproduced below:

Prieto Figure 2 “is a perspective view of [its] adjustable baseball batting tee
. . . adjusted for training a left-handed hitter” (id. at col. 2, ll. 13-15).
3. Prieto discloses that “[s]lidably positioned on the first elongated
member 3 is a sliding member 7 having apertures 7a (FIGS. 2 and 3) which
correspond to the guide bar means 5 of the first elongated member 3 for
permitting the sliding member 7 to slide along the guide bar means” (id. at
col. 2, ll. 36-42).
4. Prieto also discloses that “[r]otatably positioned on the sliding
member 7 in a cross-wise manner with respect to said first elongated
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Appeal 2009-000250
Application 10/947,395

member 3 is a second elongated member 9 which is rotatable about the
point 31” (id. at col. 2, ll. 45-48).
5. In addition, Prieto discloses that the second elongated
member 9 comprises a first end portion 9a, a second end portion 9b, and
“guide bar means 11 extending across the length of the second elongated
member 9” (id. at col. 2, ll. 48-52).
6. Prieto also discloses that “[m]ounted on the second elongated
member 9 is a substantially flat plate 27 having first 27a and second 27b
openings,” which “cooperate with an adjustable locking mechanism 29
positioned on the sliding member 7 so as to selectively lock the second
elongated member 9 in first and second locking positions” (id. at col. 3,
ll. 17-23).
7. In addition, Prieto discloses that “an upright member 15 having
a supporting surface 17 for supporting a baseball” is “slidably positioned on
the second elongated member 9 so as to be slidable between the first end
portion 9a and the second end portion 9b in the directions illustrated by
double arrow C” (id. at col. 2, ll. 53-58).
8. To permit sliding of the upright member 15, Prieto discloses
that “a base portion 15a of the upright member 15 includes openings 23
which cooperate with the guide bar means 11 of the second elongated
member 9” (id. at col. 2, l. 64, to col. 3, l. 1).
Principles of Law
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
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Application 10/947,395

art reference.” Verdegaal Bros., Inc. v. Union Oil Co. of California, 814
F.2d 628, 631 (Fed. Cir. 1987).
Analysis
Claims 1 and 7 each require lateral struts and a pivoting coupling.
Prieto discloses a batting tee having a second elongated member 9
comprising guide bars 11 and a substantially flat plate 27 mounted on the
second elongated member 9 (Findings of Fact (FF) 5-6). The Examiner
considers guide bars 11 to be a pair of lateral struts and substantially flat
plate 27 to be a pivoting coupling (Ans. 3).
Prieto discloses that the second elongated member 9 is rotatably
positioned on sliding member 7, which is slidably positioned on the first
elongated member 3 (FF 3-4). Prieto also discloses that an upright
member 15 is slidably positioned on the second elongated member 9 (FF 7).
However, Prieto does not disclose that guide bars 11 are slidable with
respect to the substantially flat plate 27. Therefore, we agree with Appellant
that the Examiner has not set forth a prima facie case that Prieto discloses a
pair of lateral struts each slidably inserted into a collar of a pair of collars
included in a pivoting coupling, as recited in claim 1, or a pivoting coupling
having a plurality of collars each for slidably supporting a lateral strut, as
recited in claim 7.
The Examiner argues that Prieto’s plate 27 “includes two
openings (23) for receiving two struts (9, 11)” (Ans. 11). However,
openings 23 are in the base of the upright member (FF 8), which the
Examiner identifies as the mounting plate (Ans. 3), not in plate 27.
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Application 10/947,395

Conclusion
The Examiner did not set forth a prima facie case that Prieto discloses
a batting tee comprising a pair of lateral struts each slidably inserted into a
collar of a pair of collars included in a pivoting coupling or a batting tee
comprising a pivoting coupling having a plurality of collars each for slidably
supporting a lateral strut. We therefore reverse the anticipation rejection of
claims 1 and 7.
OBVIOUSNESS
Claims 2-4, 6, 8-10, and 12 depend from claims 1 or 7. As discussed
above, the Examiner did not set forth a prima facie case that Prieto discloses
a batting tee comprising a pair of lateral struts each slidably inserted into a
collar of a pair of collars included in a pivoting coupling or a batting tee
comprising a pivoting coupling having a plurality of collars each for slidably
supporting a lateral strut. The Examiner also has not set forth a prima facie
case that these features would have been obvious over Prieto. We therefore
reverse the obviousness rejection of claims 2-4, 6-10, and 12.
SUMMARY
We reverse the anticipation rejection of claims 1 and 7 and the
obviousness rejection of claims 2-4, 6-10, and 12.

REVERSED

dm

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Appeal 2009-000250
Application 10/947,395

OBER/KALER
C/O ROYAL W. CRAIG
120 EAST BALTIMORE STREET
BALTIMORE, MARYLAND 21202

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