12141145 (P.T.A.B. Jun. 27, 2013)

Ex Parte Glover

Patent Trial and Appeal BoardJun 27, 2013

12141145 (P.T.A.B. Jun. 27, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte TYLER GLOVER ____________ Appeal 2011-006532 Application 12/141,145 Technology Center 3700 ____________ Before JOHN C. KERINS, JEREMY M. PLENZLER and BEVERLY M. BUNTING, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-006532 Application 12/141,145 2 STATEMENT OF THE CASE Tyler Glover (Appellant) seeks our review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1-4. Claims 5-9 are canceled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE INVENTION Appellant’s invention is directed to a game packet. Independent claim 1, reproduced below with emphasis added, is representative of the claimed subject matter: 1. A game packet comprising: at least one action figure for simulating a plurality of mixed marshal [sic, martial] arts postures, the at least one action figure comprising: an upper torso having a top end portion, a bottom end portion and a pair of side end portions, a neck portion having a top portion and a bottom portion, the bottom end portion of the neck portion movably coupled to the top end portion of the upper torso, a head portion movably coupled to the top end portion of the neck portion, a first pair of limbs movably coupled to the pair of side end portions of the upper torso, a lower torso having a top end portion and a pair of side end portions, the top end portion of the lower torso movably coupled to the bottom end portion of the upper torso, and a second pair of limbs movably coupled to the pair of side end portions of the lower torso; and a mixed martial arts ring adapted to support at least one action figure thereon, where the mixed martial Appeal 2011-006532 Application 12/141,145 3 arts ring includes a base having mixed martial arts area and a projection extending downwardly from the mixed martial arts area, further including a plurality of support members where the arrangement of the support members create an octagon shape of the mixed martial arts ring. THE REJECTIONS Appellant appeals from the following rejections: (i) claims 1 and 4 under 35 U.S.C. § 103(a) as being unpatentable over Webb (US 6,325,692 B1, issued Dec. 4, 2001) in view of Lee (US 6,830,497 B1, issued Dec. 14, 2004); and (iii) claims 2 and 3 under 35 U.S.C. § 103(a) as being unpatentable over Webb in view of Lee and Naegele (US 6,435,937 B1, issued Aug. 20, 2002). ANALYSIS Claims 1 and 4--Obviousness--Webb/Lee Appellant argues claims 1 and 4 as a group. Appeal Br. 4. We take claim 1 as representative. Appellant takes issue only with the Examiner’s position that it would have been obvious to modify the rectangular ring illustrated and described in Webb to take on an octagonal shape. Appeal Br. 4-6; Reply Br. 1-3. The Examiner’s position in this regard is that Webb discloses that changes to the shape and form of the rectangular ring are contemplated, that numerous different shapes and sizes of fighting rings, including octagonal shapes, are commonly known, and that it would have thus been obvious to modify the Webb ring to have an octagonal shape. Ans. 5-6. Appeal 2011-006532 Application 12/141,145 4 Appellant maintains that the portion of Webb relied upon is “boilerplate” that relates to optimal dimensional relationships. Appeal Br. 5. Regardless as to how the disclosure is characterized, Webb expressly discloses that changes in shape and form are contemplated. See Webb, col. 5, ll. 45-50. Appellant further does not dispute the Examiner’s finding that octagonal shaped rings were known in the art. We are thus not apprised of error in the Examiner’s position that it would have been obvious to modify the shape or form of Webb’s ring to take on another known ring shape, as a matter of design choice. Appellant further maintains that an octagonal ring choice is “functional and essential to the competitive nature of the mixed martial arts,” and thus not a matter of design choice. Reply Br. 2-3. The claimed invention is not, however, directed to a ring for an actual mixed martial arts competition, and Appellant’s Specification itself evidences that the ring may take on shapes other than octagonal, and thus the octagonal shape is not essential or critical to the claimed game packet. Spec., p. 5, para. [0020]. This argument also fails to apprise us of error on the Examiner’s part. Appellant’s remaining arguments are along the same lines as the arguments above, and while we have considered them in their entirety, they do not apprise us of Examiner error. The rejection of claims 1 and 4 as being unpatentable over Webb and Lee is sustained. Appeal 2011-006532 Application 12/141,145 5 Claims 2 and 3--Obviousness--Webb/Lee/Naegele Appellant expressly relies on the arguments presented for claim 1 in response to this ground of rejection. Appeal Br. 7. For the reasons stated above, we are unpersuaded by those arguments, and the rejection is sustained. DECISION The decision of the Examiner to reject claims 1-4 under 35 U.S.C. § 103(a) is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED hh