Ex Parte Nguyen

Board of Patent Appeals and Interferences

Jul 22, 2008

10919852 (B.P.A.I. Jul. 22, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte
HAI MINH NGUYEN
__________

Appeal 2008-1976
Application 10/919,852
Technology Center 3700
__________

DECIDED: July 22, 2008
__________

Before TONI R. SCHEINER, DONALD E. ADAMS, and LORA M. GREEN,
Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1, 3, and 5-10, the only claims remaining in the application. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

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STATEMENT OF THE CASE
The present invention is directed to a swing exercising device which
eliminates the need to retrieve struck balls, and allows a user, for example a
golfer or baseball player, to practice his or her swing in a confined area
(Spec. 1: 4-11; 5: 5-13).
The claims stand rejected as follows.
I. Claims 1, 5, and 10 under 35 U.S.C. § 102(b), as anticipated by Di Re
(U.S. Patent 6,551,204 B1, issued April 22, 2003).

II. Claims 1, 3, 6, 8, and 9 under 35 U.S.C. § 103(a) as unpatentable over
Wang (U.S. Patent 4,932,660, issued June 12, 1990) in view of Chou (U.S.
Patent 6,425,830 B1, issued July 30, 2002).

III. Claims 1, 3, and 9 under 35 U.S.C. § 103(a) as unpatentable over
Hornig (U.S. Patent 2,606,025, issued August 5, 1952) in view of Chou.

IV. Claims 1 and 6-8 under 35 U.S.C. § 103(a) as unpatentable over
Smith (U.S. Patent 5,454,561, issued October 3, 1995) in view of Chou.

Claims 1, 3, 5, and 6 are representative, and read as follows:
1. A swing exercising device, comprising:
a base ;
a handle coupled to the base;
means for attaching a ball to the base.

3. The device of claim 1, wherein said base includes an opening and
wherein said means for attaching a ball comprises a pivotable arm inserted
into said opening, wherein when the ball is struck, the arm allows the ball to
orbit around said opening above said base.

5. The device of claim 1, comprising a tube mounted on top of the base
and adapted to receive said string therethrough.

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6. The device of claim 1, wherein said means for attaching a ball
comprises:
a stand projecting above the base;
an arm projecting from the stand; and
a ring rotatably coupled to the arm.

FINDINGS OF FACT (FF)
1. The swing exercising device of claim 1 requires 3 elements: a base;
a handle coupled to the base; and means for attaching a ball to the base.
2. The third element of claim 1 is expressed in “means-plus-function”
language. According to Appellant, the structures corresponding to the
“means for attaching a ball to the base” language are disclosed in the
Specification as follows: “(Fig. 1, item 16; Fig. 2, item 24[;] Fig. 4, item
47[;] Fig. 5, item[s] 54, 57, 59; Fig. 6, item 65; Fig. 7, items 76-77; Fig. 8,
item 84; and Fig. 9[,] item 93; page 6 line 7 - page 10 line 20)” (App. Br. 2).
3. Appellant does not specifically identify any structural elements in
Figure 3 of the Specification corresponding to the “means for attaching a
ball to the base” language of claim 1.
4. Figure 3 of the Specification is reproduced immediately below:

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Figure 3 shows an embodiment of the device “with an enclosure 30 having
. . . a pipe 39 on a top side of the enclosure 30. Projecting through the pipe
39 is a spring 36. At one end of the spring 36 is a ball 38, and the other end
of the spring is attached to a retainer 34 to secure the spring to the
enclosure” (Spec. 7: 3-6). When the ball is struck, it “flies off, but is
restrained by the spring 36 and spins around the pipe 39 until the . . . ball
returns to its original rest position” (Spec. 7: 9-11).
5. Spring 36 and pipe 39, shown in Figure 3, correspond to the “means
for attaching a ball to the base” language of claim 1.
6. In addition, according to claim 3, another structure corresponding to a
“means for attaching a ball to the base” is “a pivotable arm inserted into said
opening [in the base]” (Claim 3). Yet another structure corresponding to
“means for attaching a ball to the base” is “a stand projecting above the
base; an arm projecting from the stand; and a ring rotatable coupled to the
arm” (Claim 6). Finally, “[t]he means for attaching a ball can include a
coiled spring fastened to one side of the base” (Spec. 4: 5-6); “a pivotable
arm” (Spec. 4: 8); or a retainer secured in the base with a coiled spring
fastened to the retainer, and a string coupled to the coiled spring (Spec. 4:
10-11). “The means for attaching a ball can also include a first hollow
[rectangular or cylindrical] tube . . . [with] a second [hollow] tube rotatably
coupled to and slideably engaging the first hollow tube . . . [a]n arm can be
connected to the second tube . . . [and] [t]he ball can be mounted on one end
of the arm . . . [or] [a] spring can be connected to the arm and the ball”
(Spec. 4: 18-24).

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Di Re
7. Di Re describes “a baseball batting practice system allowing a
baseball player to practice their swing without having to retrieve the ball”
(Di Re, col. 1, ll. 6-8).
8. Figure 1, reproduced below, illustrates Di Re’s batting practice
system:

Figure 1 is a perspective view of Di Re’s system, and shows an “inverted T-
shaped stand 12 [which] includes a lower horizontal base 14 and an upper
vertical support 16” (Di Re, col. 2, ll. 31-34).
9. “[H]orizontal base 14 is provided with additional end portions 26 that
are capable of receiving anchoring screws 28 to secure the stand 12 to a
recipient ground surface” (Di Re, col. 2, ll. 31-34). “U-hook 33 is provided
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at one of the additional end portions 26 to provide direct anchoring to the
ground surface” (Di Re, col. 2, ll. 54-55).
10. Ball 38 is secured to upper vertical support 16 with “interior elastic
cord 44 [which] has a free end securable interiorly of the upper vertical
support 16” (Di Re, col. 3, ll. 20-21).
11. When “the ball 38 has been struck, pulling the ball 38 somewhat
upward and away from the ball support cup 36[,] [t]he interior elastic cord
44 stretches but keeps the ball 38 tethered to the upper vertical support 16”
(Di Re, col. 3, ll. 31-35).
Chou
12. Chou describes a golf swing practicing device as shown in Figure 3,
reproduced below:

Figure 3 is a perspective view of the golf swing practice device, which
comprises a board 10, and a handle 11 connected to board 10 (Chou, col. 2,
ll. 30-33). Flexible rod 79 is rotatably mounted on the board through tube
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67 which extends from a skirt portion mounted to the board, and shaft 82,
which extends through hole 75 in the board 10 (Chou, col. 2, ll. 42-52). A
golf ball is mounted to the distal end of flexible rod 79 (Chou, col. 2, ll. 63-
64).
13. Chou’s “device can be easily carried by the handle 11” (Chou, col. 3,
ll. 4-5).
Wang
14. Wang describes a golf practice device, as shown in Figure 3,
reproduced immediately below:

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Figure 3 is a side elevational view of Wang’s practice device. The device
“consists of an elongate base 1, an inverted L-shaped support 2 secured to
the elongate base 1 . . . a rotatable member 4 mounted on the upper end of
the L-shaped support 2, and a ball body 5 mounted loosely on the rotatable
member 4” (Wang, col. 3, l. 67 to col. 4, l. 5).
15. Elongate base 1 is “a flat rectangular section covered with artificial
grass. The base part 1 is constructed of high strength rubber matting on
which the L-shaped support . . . [is] mounted” (Wang, col. 4, ll. 6-10).
Hornig
16. Hornig describes a ball game apparatus “wherein a captive ball may
be struck by the hand or a bat or racquet to cause it to encircle its support”
(Hornig, col. 1, ll. 1-4). Figure 1 of Hornig is reproduced below:

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Figure 1 is a side elevational view of Hornig’s device. “Base 1 is of such
weight, size and material as will furnish a substantial support during the use
of the apparatus. Mounted in such base is vertical post 2 from which at the
top extends horizontally arm 3 which . . . is tubular” (Hornig, col. 1, ll. 28-
32). “Within arm 3 . . . is coil spring 6 which is secured at one end to
rotatable disc 8 and at the other end is anchored at 10 to closure 9” (Hornig,
col. 1, ll. 43-46).
17. “When ball 4 is struck it will revolve about the end of arm 3 carrying
with it wire 5 and turning the axle to which the wire is secured” (Hornig, col.
1, ll. 56-58). The spring “may be placed outside of arm 3” (Hornig, col. 2,
ll. 7-8).
Smith
18. Smith describes “an apparatus permitting players to practice batting a
ball” (Smith, col. 1, ll. 8-9).
19. “The device comprises a base 22 having an upwardly open socket 24
centrally supporting, a preferably tubular, standard having laterally
projecting arm 28 in[ ]turn supporting a tethered ball 30 at its end remote
from the standard” (Smith, col. 1, ll. 59-62). “[A]ngularly rotatable hub
means 40, at the end of the arm 28 remote from the standard 26, secures one
end of a flexible strand 42 secured at its other end portion to the ball 30”
(Smith, col. 2, ll. 9-12).
20. “When the ball 30 is struck by a bat . . . the ball rotates in a circular
direction in a substantially vertical plane” (Smith, col. 2, ll. 34-35).

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21. Smith’s apparatus is shown in Figure 1, reproduced immediately
below:

Figure 1 is a perspective view of Smith apparatus, showing, among other
things, LED indicia 76 displaying units of distance measurement (Smith col.
3, ll. 65-66).
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DISCUSSION
In this decision we consider only those arguments actually made by
Appellant in the Brief. Arguments that Appellant could have made but
chose not to make in the Brief have not been considered and are deemed to
have been waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Anticipation by Di Re
The Examiner rejected claims 1, 5, and 10 under 35 U.S.C. § 102(b)
as anticipated by Di Re. The exercising device of claim 1 requires: a base;
a handle coupled to the base; and means for attaching a ball to the base.
Claim 5 requires a tube mounted on top of the base adapted for receiving a
string. Claim 10 requires that the base is rectangular.
The issues raised by this rejection on appeal are essentially: whether
Di Re describes a device with a handle; whether Di Re describes “means for
attaching a ball to the base” as interpreted under 35 U.S.C. § 112, sixth
paragraph; and, with respect to claim 5, whether Di Re describes a device
with a tube mounted on top of the base adapted for receiving a string.
The Examiner contends that Di Re discloses a rectangular base 14, a
handle 33 coupled to the base, and a means for attaching a ball to the base
(Ans. 3).
With respect to claim 5 in particular, the Examiner contends that Di
Re discloses a tube 16 mounted on the base and adapted to receive a string
(Ans. 3).
Appellant contends that “Di Re fails to show the handle, and the word
handle is no-where mentioned in Di Re” (App. Br. 3).
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This argument is not persuasive. The Examiner has identified Di Re’s
U-bolt 33 as a structure capable of functioning as a handle, and Appellant
has not explained why it could not function in that manner.
Appellant further contends “under Section 112, [sixth paragraph] Di
Re fails to show the structure [of the means for attaching a ball to the base]
recited in Fig. 5” of the present Specification (App. Br. 3), and therefore
“cannot anticipate claim 1 as well as claims dependent therefrom” (App. Br.
4). In particular, Appellant argues
Under Section 112, the structure corresponding to the means for
attaching the ball to the base includes an arm 55 projecting
horizontally from the stand 54. A ring 56 is rotatably mounted
on the arm 55. A pipe 57 is connected to the ring 56, and a
string 59 is attached to the other end of the pipe 57. A ball 58 is
attached to the remaining end of the string 59.

(App. Br. 3.)
This argument is not persuasive. As pointed out by the Examiner,
“[t]he instant invention has 9 mechanically different embodiments (Fig.
1-9)” (Ans. 5) corresponding to the “means for attaching a ball to the base”
language in claim 1. In other words, the structure shown in Figure 5 of the
present Specification is not the only structure corresponding to the means-
plus-function language of claim 1 (Spec. 6: 8 to 10: 20; Figs.1-9).
According to Appellant, structures that correspond to the “means for
attaching a ball to the base” are as follows: : “(Fig. 1, item 16; Fig. 2, item
24[;] Fig. 4, item 47[;] Fig. 5, item[s] 54, 57, 59; Fig. 6, item 65; Fig. 7,
items 76-77; Fig. 8, item 84; and Fig. 9[,] item 93; page 6 line 7 - page 10
line 20)” (App. Br. 2; FF 2). In addition, spring 36 and pipe 39, shown in
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Figure 3 of the present Specification, correspond to the “means for attaching
a ball to the base” language of claim 1 (FF 4, 5).
As discussed above, Di Re describes a T-shaped stand 12 which
includes a lower horizontal base 14 and an upper vertical support 16 (Di Re,
col. 2, ll. 31-34; FF 8). Vertical support 16 is attached to base 14 (FF 8).
Elastic cord 44, attached to ball 38, runs through vertical support 16 and
stretches to allow ball 38 to move away from the base, but still remain
tethered to the base when hit by a practice swing (FF 10, 11).
It may be that Di Re does not describe the structure shown in Figure 5
of the present Specification, but Appellant has not explained why Di Re’s
vertical support 16 and elastic cord 44 are not equivalent to at least one of
the present Specification’s other structures corresponding to the “means for
attaching a ball to the base” of claim 1.
For example, Appellant has not explained why spring 37 and pipe 39
of Appellant’s device (shown in Figure 3 of the Specification), and Di Re’s
elastic cord 44 and vertical support 16, are not equivalent means of attaching
a ball to the base. According to the Specification, when the ball is struck, it
“flies off, but is restrained by the spring 36 and spins around the pipe 39
until the . . . ball returns to its original rest position” (Spec. 7: 9-11; FF 4).
Likewise, according to Di Re, when “the ball 38 has been struck, pulling the
ball 38 somewhat upward and away from the ball support cup 36[,] [t]he
interior elastic cord 44 stretches but keeps the ball 38 tethered to the upper
vertical support 16” (Di Re, col. 3, ll. 31-35; FF 11). Thus, these structures
perform the identical function, in substantially the same way, and produce
substantially the same result (FF 4, 11). See Kemco Sales, Inc. v. Control
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Papers Co., 208 F.3d 1352, 1364 (Fed. Cir. 2000) (“[T]wo structures may be
‘equivalent’ for purposes of section 112, paragraph 6, if they perform the
identical function, in substantially the same way, with substantially the same
result.”).
As for claim 5, we note that the strictures of the sixth paragraph of
35 U.S.C. § 112 do not apply because claim 5 explicitly recites a structure
comprising “a tube mounted on top of the base and adapted to receive . . .
[a] string therethrough.” See Rodime PLC v. Seagate Technology, Inc., 174
F.3d 1294, 1303-04 (Fed. Cir. 1999) (“[D]etailed recitation of structure for
performing the . . . [claimed] function takes this claim element out of the
scope of § 112, ¶ 6”).
Appellant argues “with respect to claim 5, Di Re fails to show a tube
mounted on top of the base and adapted to receive a string therethrough.
Fig. 1 shows a ball, but not the string” (App. Br. 4).
This argument is not persuasive. Di Re clearly shows a tube (vertical
support 16) mounted on top of the base (horizontal base 14), with an elastic
cord running through the vertical support (FF 8, 10). The fact that Di Re
shows an elastic cord 44 rather than a string is irrelevant, as claim 5 merely
requires a tube “adapted” to receive (i.e., capable of receiving) a string.
Clearly, Di Re’s vertical support is capable of receiving a string.
The rejection of claims 1, 5, and 10 under 35 U.S.C. § 102(b) as
anticipated by Di Re is affirmed.
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Obviousness over Wang and Chou
Claims 1, 3, 6, 8, and 9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Wang in view of Chou.
Appellant has not argued the rejected claims separately. Therefore,
we select claim 1 as representative of the claimed subject matter for the
purpose of deciding this rejection on appeal, and claims 3, 6, 8, and 9 will
stand or fall accordingly. 37 C.F.R. § 41.37(c)(1)(vii).
Again, the exercising device of claim 1 requires: a base; a handle
coupled to the base; and means for attaching a ball to the base.
The Examiner contends that Wang discloses a base, a means for
attaching a ball to the base, a ring rotatably coupled to the means for
attaching a ball to the base, and a string (items 1, 2, 4, 44, 53), while Chou
discloses the use of a handle on a golf swing exercise device (Ans. 3). The
Examiner contends “[i]t would have been obvious to one of ordinary skill in
the art . . . to have employed the handle of Chou with the apparatus of Wang
in order to more easily adjust and move the device” (id.).
Appellant contends that “Wang fails to show the structure
corresponding to the means for attaching a ball to the base” (App. Br. 4),
where that structure includes
an arm 55 projecting horizontally from the stand 54. A ring 56
is rotatably mounted on the arm 55. A pipe 57 is connected to
the ring 56, and a string 59 is attached to the other end of the
pipe 57. A ball 58 is attached to the remaining end of the string
59. Similarly, Chou fails to show the attaching means structure.

(App. Br. 4.)
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Appellant further contends that “Wang does not show the base and is
not designed to be movable” (App. Br. 4), and “[o]ne skilled in the art would
not be motivated to combine Chou with Wang as attaching the handle to the
ground serving as the base for Wang would be non-functional” (id.).
Thus, the issues raised by this rejection on appeal are essentially:
whether Wang describes “means for attaching a ball to the base” as
interpreted under 35 U.S.C. § 112, sixth paragraph, and whether the
combined teachings of Wang and Chou would have suggested a swing
exercise device with a handle.
Appellant’s arguments do not persuade us that the Examiner’s
conclusion that the rejected claims are unpatentable over Wang and Chou is
in error. Appellant is again arguing that the cited references do not disclose
the structure shown in Figure 5 of the present invention. However, as
discussed above, the structure shown in Figure 5 of the present Specification
is not the only structure corresponding to the means-plus-function language
of claim 1 (FF 2, 4, 5, 6).
Again, Appellant has not explained why Wang’s rotatable member 4,
and L-shaped support 2, secured to base 1, are not equivalent to at least one
of the present Specification’s other structures corresponding to the “means
for attaching a ball to the base” of claim 1 (for example, where “said means
for attaching a ball comprises: a stand projecting above the base; an arm
projecting from the stand; and a ring rotatably coupled to the arm” (Claim 6,
FF 6)).
Moreover, contrary to Appellant’s argument (and as pointed out by
the Examiner on page 6 of the Answer), Wang discloses elongate base 1,
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“a flat rectangular section covered with artificial grass. The base part 1 is
constructed of high strength rubber matting on which the L-shaped support
. . . [is] mounted” (Wang, col. 4, ll. 6-10; FF 15). Therefore, we are not
persuaded by Appellant’s argument that “attaching the handle to the ground
serving as the base for Wang would be non-functional” (App. Br. 4).
The rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over Wang and Chou is affirmed, and claims 3, 6, 8, and 9 fall accordingly.
Obviousness over Hornig and Chou
Claims 1, 3, and 9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Hornig in view of Chou.
The Examiner contends that Hornig discloses a base (item 1) and a
means for attaching a ball to a base (item 2) as required by claim 1, but does
not disclose a handle attached to the base (Ans. 4). The Examiner contends
“[i]t would have been obvious to one of ordinary skill in the art . . . to have
employed the handle of Chou with the apparatus of [Hornig] in order to
more easily adjust and move the device” (id.).
Appellant contends that Hornig “fails to show the structure
corresponding to the means for attaching the ball to the base” (App. Br. 5),
where that structure includes
an arm 55 projecting horizontally from the stand 54. A ring 56
is rotatably mounted on the arm 55. A pipe 57 is connected to
the ring 56, and a string 59 is attached to the other end of the
pipe 57. A ball 58 is attached to the remaining end of the string
59. Similarly, Chou fails to show the attaching means structure.

(App. Br. 5.)
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Once again, Appellant argues that the cited references do not disclose
the structure shown in Figure 5 of the present invention. However, as
discussed above, the structure shown in Figure 5 of the present Specification
is not the only structure corresponding to the means-plus-function language
of claim 1 (FF 2, 4, 5, 6).
In addition, Appellant further contends that Hornig’s device is “for
bats or hands” and “[is] not useful for golf” (App. Br. 5).
Appellant’s arguments do not persuade us that the Examiner’s
conclusion that claims 1 and 3 are unpatentable over Hornig and Chou is in
error. Again, Appellant has not explained why Hornig’s vertical post 2,
horizontally extending tubular arm 3, and axel 7 are not equivalent to at least
one of the present Specification’s other structures corresponding to the
“means for attaching a ball to the base.” (Claim 1).
However, with respect to claim 9, which requires that the ball is a golf
ball, we disagree with the Examiner’s interpretation of the reference.
Contrary to the Examiners assertion, ball 4 is not a golf ball, but is instead a
ball hit with a bat (e.g., a baseball), or a racquet (FF 16).
The rejection of claims 1, 3, and 9 under 35 U.S.C. § 103(a) as
unpatentable over Horning and Chou is affirmed with respect to claims 1
and 3, but reversed with respect to claim 9.
Obviousness over Smith and Chou
Claims 1 and 6-8 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Smith and Chou.
The Examiner contends that Smith discloses a base (item 22) and a
means for attaching a ball to a base (items 26, 44, and 42) as required by
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claim 1, but does not disclose a handle attached to the base (Ans. 4). The
Examiner contends “[i]t would have been obvious to one of ordinary skill in
the art . . . to have employed the handle of Chou with the apparatus of Smith
in order to more easily adjust and move the device” (id.). In addition, the
Examiner contends that Smith discloses a distance indicator (item 66) (id.).
Appellant contends “[a]gain, Smith fails to show the structure
corresponding to the means for attaching the ball to the base” (App. Br. 5),
where that structure includes
an arm 55 projecting horizontally from the stand 54. A ring 56
is rotatably mounted on the arm 55. A pipe 57 is connected to
the ring 56, and a string 59 is attached to the other end of the
pipe 57. A ball 58 is attached to the remaining end of the string
59. Similarly, Chou fails to show the attaching means structure.

(App. Br. 5.)
Once again, Appellant argues that the cited references do not disclose
the structure shown in Figure 5 of the present invention. However, as
discussed above, the structure shown in Figure 5 of the present Specification
is not the only structure corresponding to the means-plus-function language
of claim 1 (FF 2, 4, 5, 6).
Appellant’s arguments do not persuade us that the Examiner’s
conclusion that claims 1 and 6-8 are unpatentable over Smith and Chou is in
error. Appellant has not explained why Smith’s standard 26 (attached to
base 22), projecting arm 28, and circular cylinder 44 (FF 19, 20, 21) are not
equivalent to at least one of the present Specification’s other structures
corresponding to the “means for attaching a ball to the base” required by
claim 1, for example, the means for attaching a ball to the base recited in
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claim 6: “a stand projecting above the base; an arm projecting from the
stand; and a ring rotatably coupled to the arm” (Claim 6).
Appellant further contends that combining Chou with Smith would
“result in a game device for bats and not for golf. Hence, Smith and Chou
cannot render claim 1 and any of the dependent claims obvious” (App. Br.
6). This argument is not persuasive, as none of the claims rejected over
Smith and Chou is limited to a golf swing exercise device.
The rejection of claims 1 and 6-8 under 35 U.S.C. § 103(a) as
unpatentable over Smith and Chou is affirmed.
SUMMARY
The rejection of claims 1, 5, and 10 under 35 U.S.C. § 102(b) as
anticipated by Di Re is affirmed.
The rejection of claims 1, 3, 6, 8, and 9 under 35 U.S.C. § 103(a) as
unpatentable over Wang and Chou is affirmed.
The rejection of claims 1, 3, and 9 under 35 U.S.C. § 103(a) as
unpatentable over Horning and Chou is affirmed with respect to claims 1
and 3, but reversed with respect to claim 9.
The rejection of claims 1 and 6-8 under 35 U.S.C. § 103(a) as
unpatentable over Smith and Chou is affirmed.

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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)(2006).

AFFIRMED

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