Ex Parte Spiegel

Board of Patent Appeals and Interferences

May 29, 2007

10747179 (B.P.A.I. May. 29, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte H. JAY SPIEGEL
__________

Appeal 2006-2155
Application 10/747,179
Technology Center 3700
___________

Decided: May 29, 2007
___________

Before TERRY J. OWENS, STUART S. LEVY, and ANTON W.
FETTING, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
The Appellant requests reconsideration of the affirmance of the
rejection of claims 1-3, 8, 10, 11 and 14-20 under 35 U.S.C. § 102(b) over
US 5,613,678 to McKee et al. in our March 26, 2007 decision (Request 1).
The Appellant argues that McKee’s disclosure that the tee functions as
a conventional football tee (col. 11, ll. 5-6) indicates that there is no
Appeal 2006-2155
Application 10/747,179

2
structure associated with the tee that would deflect the football (Request 6).
The Appellant argues that the Board’s statement that “[a]s shown in figure
13C, when a football placed in the indentation [230] is kicked, at least the
lower tip of the football necessarily will strike the first surface [226]”
(Decision 4) “is speculative at best and surely does not occur” (Request 6).
The depth of the indentation (230) in McKee’s figure 13C, which
appears to be comparable to those in the Appellant’s figures 6-8, indicates
that surface 226 necessarily is capable of being struck by a football kicked
from the tee, especially if the football is kicked straight ahead or downward.
The Appellant’s claims are not limited to the football being kicked straight
up such that it somehow would not hit surface 226. The Appellant argues
that US 5,501,454 to Frantz discloses a tee that surrounds the tip of a
football without impeding a clean kick therefrom (Request 6-7). The entire
sentence in the portion of Frantz (Frantz, col. 6, ll. 39-41) relied upon by the
Appellant states that “[t]he construction and configuration of kicking tee 20
is especially suited to provide the most accurate kick with the longest
trajectory simulating game conditions by virtue of the fact that the kicker’s
instep or toe contacts only the underside wall of the football and does not
engage any portion of kicking tee 20, be aligned so that the kicker can point
tee 20 to the intended direction thus maximizing accuracy of the kicks”
(Frantz, col. 6, ll. 39-46). That portion of Frantz discloses that the kicker’s
foot does not hit the tee, but is silent as to whether the football, after being
kicked, strikes any portion of the tee.
Appeal 2006-2155
Application 10/747,179

3
The Appellant argues that McKee does not indicate that the football is
deflected into a substantially predictable trajectory (Request 5-6). The
Appellant’s Specification does not indicate how predictable a “substantially
predicable trajectory” must be. Certainly, if a football is kicked forward
from McKee’s tee, the ball predictably will go in a generally forward
trajectory rather than backward.
For the above reasons we are not convinced of error in our decision.
Accordingly, the request for rehearing is denied.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(2006).
DENIED

hh

H. Jay Spiegel
P.O. Box 11
Mount Vernon, VA 22121