Ex Parte VodenDownload PDFBoard of Patent Appeals and InterferencesSep 20, 200710768512 (B.P.A.I. Sep. 20, 2007) Copy Citation The opinion in support of the decision being entered 1 today is not binding precedent of the Board. 2 3 4 UNITED STATES PATENT AND TRADEMARK OFFICE 5 _____________ 6 7 BEFORE THE BOARD OF PATENT APPEALS 8 AND INTERFERENCES 9 _____________ 10 11 Ex parte JUSTIN L. VODEN 12 _____________ 13 14 Appeal No. 2007-0779 15 Application No. 10/768,512 16 Technology Center 3700 17 ______________ 18 19 Decided: September 20, 2007 20 _______________ 21 22 Before WILLIAM, F. PATE, III, TERRY J. OWENS, and DAVID B. WALKER, 23 Administrative Patent Judges. 24 25 OWENS, Administrative Patent Judge. 26 27 28 DECISION ON APPEAL 29 30 The Appellant appeals from a rejection of claims 1-16, which are all of the 31 pending claims. 32 THE INVENTION 33 The Appellant claims a rotary game table having a pool table on one side 34 and a table soccer game on the other side. Claim 1 is illustrative: 35 1. A rotary game table comprising: 36 Appeal 2007-0779 Application 10/768,512 2 a combination game table including a pool table disposed on 1 one side and a table soccer game disposed on the other side thereof; 2 two side support members; 3 at least one cross member being terminated by one of said two 4 side support members one each end thereof, said combination game table 5 being pivotally supported on each end by one of said two side support 6 members; and 7 a pair of support latches being contained in at least one of said 8 two side support members, said pair of support latches preventing said 9 combination game table from rotating. 10 11 THE REFERENCES 12 Zimmers US 3,866,913 Feb. 18, 1975 13 Padilla1 US 60/480,567 Jun. 20, 2003 14 15 THE REJECTIONS 16 The claims stand rejected as follows: claims 1, 3-6, 8-10, 12 and 13 under 17 35 U.S.C. § 102(e) as anticipated by Padilla, claims 2, 7 and 14-16 under 18 35 U.S.C. § 103 as obvious over Padilla, and claim 11 under 35 U.S.C. § 103 as 19 obvious over Padilla in view of Zimmers. 20 OPINION 21 We affirm the aforementioned rejections. 22 The Appellant’s sole argument is that the Appellant has established priority 23 before Padilla’s effective date (Br. 4-11). The Appellant argues that the 24 Appellant’s parent application (10/455,666, filed Jun. 5, 2003) predates Padilla’s 25 June 20, 2003 filing date and discloses all of the presently claimed subject matter 26 except a table soccer game (Br. 6-8). To establish priority as to a table soccer 27 1 Padilla is the provisional application for US 2005/0049056 A1 (filed Jun. 21, 2004, issued Mar. 3, 2005). Appeal 2007-0779 Application 10/768,512 3 game the Appellant relies upon a Rule 131 Declaration by the inventor, Justin L. 1 Voden (submitted with the Appellant’s July 18, 2005 response). See id. 2 For the following reasons Voden’s Declaration is not sufficient to establish 3 priority. 4 First, the Declaration (exhibit A) shows conception only of a foosball game, 5 not a foosball (table soccer) game in combination with a pool table as required by 6 each of the Appellant’s claims. 7 Second, a showing of diligence must be supported by facts sufficient in 8 character and weight to establish diligence. See 37 C.F.R. § 1.131(b)(2000). The 9 Voden Declaration merely asserts that “from before June 20, 2003, to January 29, 10 2004, the filing date of the above-captioned invention, I diligently worked toward 11 reducing the above-captioned invention to practice and worked with patent counsel 12 in the preparation of a patent application for the claimed invention.” (Declaration, 13 p. 1, ¶ 5). The Declaration does not include the required showing of facts 14 supporting that assertion. 15 The Appellant, therefore, has not established priority as to Padilla. 16 Accordingly, we affirm the Examiner’s rejections. 17 DECISION 18 The rejections of claims 1, 3-6, 8-10, 12 and 13 under 35 U.S.C. § 102(e) 19 over Padilla, claims 2, 7 and 14-16 under 35 U.S.C. § 103 over Padilla, and claim 20 11 under 35 U.S.C. § 103 over Padilla in view of Zimmers are affirmed. 21 22 23 24 Appeal 2007-0779 Application 10/768,512 4 No time period for taking any subsequent action in connection with this 1 appeal may be extended under 37 C.F.R. § 1.136. 2 AFFIRMED 3 4 5 6 7 8 9 10 11 12 13 14 hh 15 16 ZIOLKOWSKI PATENT SOLUTIONS GROUP, SC (ZPS) 17 136 S WISCONSIN ST 18 PORT WASHINGTON, WI 53074 19 Copy with citationCopy as parenthetical citation