Indian Industries, Inc.

Patent Trials and Appeals Board

Jun 2, 2021

2020006022 (P.T.A.B. Jun. 2, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/624,922 06/16/2017 Philip Elpers 001405-000781 7413
30565 7590 06/02/2021
WOODARD, EMHARDT, HENRY, REEVES & WAGNER, LLP
111 MONUMENT CIRCLE, SUITE 3700
INDIANAPOLIS, IN 46204-5137
EXAMINER
DAVISON, LAURA L
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
06/02/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
DocketDept@uspatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILIP ELPERS, MICHAEL GUERZINI, and
ANDREW HUGHES
Appeal 2020-006022
Application 15/624,922
Technology Center 3700
Before JOHN C. KERINS, EDWARD A. BROWN and
CARL M. DEFRANCO, Administrative Patent Judges.
DEFRANCO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 21, 23–27, 29–34, and 36–40.1 Claims
1–20, 22, 28, and 35 are canceled. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies Indian Industries, Inc. as the real party in
interest. Appeal Br. 3.

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Application 15/624,922

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CLAIMED SUBJECT MATTER
The claimed invention relates to a collapsible net wall that spreads
behind a basketball goal to stop missed shots. See Spec. 3. Of the claims on
appeal, claims 21, 27, and 33 are independent. Claim 27, reproduced below,
is illustrative:
21. A method of using an apparatus for stopping an
errantly shot basketball, comprising:
attaching an upper edge of a flexible wall of a net
material to a top end region of a post of a basketball goal, the
flexible wall comprising left and right wall portions, said wall
portions defining left and right wall upper perimeter edges;
pivotally connecting a left base arm to a bottom end
region of the post, the left base arm having a length secured
along a bottom edge of the left wall portion;
pivotally connecting a right base arm to the bottom end
region of the post, the right base arm having a length secured
along a bottom edge of the right wall portion;
spreading the left and right wall portions of the flexible
wall laterally away from the post to form a wall to stop an
errantly shot basketball by pivoting the left and right base arms
from a vertical configuration to a horizontal configuration
wherein said left wall upper perimeter edge extends in an
outward and downward direction away from the top end region
of the post, and said right wall upper perimeter edge extends in
an outward and downward direction away from the top end
region of the post to a spread open configuration;
gathering the entirety of the flexible wall near the post by
pivoting the left and right base arms from the horizontal
configuration to the vertical configuration; and,
storing the flexible wall and the left and right base arms
in a gathered position adjacent the post;
wherein the left and right wall upper perimeter edges
include a flexible perimeter member that, in the spread open
configuration, is under tension; and
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wherein in the spread open configuration the left wall
upper perimeter edge and right wall upper perimeter edge each
have an intermediate portion positioned radially further from
the bottom end region of the post than outermost ends of the
left and right base arms.
Appeal Br. 25–26 (Claims App.).
EXAMINER’S REJECTIONS
Claims 21, 23–27, 29–34, and 36–40 stand rejected under 35 U.S.C.
§ 112, first paragraph, as lacking written description support. Final Act. 2–
5.
Claims 21, 23–27, 29–34, and 36–40 stand rejected under 35 U.S.C.
§ 112, second paragraph, as being indefinite. Final Act. 5–8.
Claims 21, 24–27, 30–32, and 40 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Keehn (US 6,416,431 B1, iss. July 9, 2002)
and Mark (US 6,926,060 B2, iss. Aug. 9, 2005). Final Act. 9–16.
Claims 23, 29, 33, 34, and 36–39 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Keehn, Mark, and Barnes (US 6,746,348 B2,
iss. June 8, 2004). Final Act. 16–22.
Claims 21, 24–27, 30–32, and 40 stand rejected on grounds of non-
statutory double patenting as being unpatentable over claims 1, 4, 13, 16,
and 17 of Elpers (US 9,717,973 B2, iss. Aug. 1, 2017) and Keehn. Final
Act. 24–26.
Claims 23, 29, 33, 34, and 36-39 stand rejected on grounds of non-
statutory double patenting as being unpatentable over claims 1 and 13 of
Elpers, Keehn and Barnes. Final Act. 26–29.
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ANALYSIS
A. Written Description
The Examiner rejects claims 21, 23–27, 29–34, and 36–40 as lacking
written description support for the “broader, more generic invention” recited
by independent claims 21, 27, and 33. Final Act. 2–5. As noted by the
Examiner, independent claim 21 “requires that the left and right wall upper
perimeter edges include a flexible perimeter member that, in the spread open
configuration, is under tension[], and an intermediate portion positioned
radially further from the bottom end region of the post than outermost ends
of left and right base arms in the spread open configuration.” Ans. 3.
Independent claims 27 and 33 include a similar requirement. See id. at 3–4.
But, according to the Examiner, the method described in the Specification
“requires securing a pair of intermediate arms (110, 112 in Fig. 1; 810, 812
in Fig. 8) to the left and right wall portions to place the flexible perimeter in
tension with the perimeter edge pushed outwardly into the claimed shapes in
the spread configuration.” Id. at 4.
In other words, the Examiner believes that the claimed shape depends
entirely on the presence of the intermediate arms described in the
Specification and shown in the drawings. That belief is premised on the
Examiner’s finding that “Appellant’s specification does not describe any
other way of spreading a flexible wall with a flexible perimeter member into
the claimed shape, nor does the specification suggest that Appellant
envisioned any other way of spreading the wall into the claimed shape
except by the step of securing a pair of intermediate arms to the flexible
wall, which is omitted from the claims.” Id. at 5. And, because “one skilled
in the art would understand from Appellant’s disclosure that the intermediate
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arms are essential to the invention that Appellant has disclosed, in order to
spread the flexible wall into the claimed shape,” the Examiner concludes
that the original disclosure would not reasonably convey to one of ordinary
skill in the art that Applicant had possession of the broader, more generic
invention of claims 21, 27, and 33, none of which mention the intermediate
arms. Id. at 8; see also Final Act. 5 (citing MPEP 2163.05.1).
We see clear error in this rejection. As Appellant correctly notes, the
Examiner overlooks numerous aspects of the Specification evidencing that
the claimed spread open configuration can be accomplished without the need
for intermediate arms. See Appeal Br. 8–11; Reply Br. 2–5. To begin, the
Specification expressly describes an alternative embodiment in which the
intermediate arms are optional while the perimeter members are critical to
the spread open configuration of the net wall. Spec. 14:13 (“Alternatively
an embodiment may include zero intermediate arms.”). As to how the
claimed shape of the net wall is achieved in the absence of intermediate
arms, the Specification provides that the perimeter members of the net wall
may be formed of rigid members (such as bar sections) and/or resilient
members (such as cords and/or chains) coupled to the top of the goal post.
Id. at 15:21–16:2, 23:9–10. Moreover, the Specification provides that
“upper spreading arms” may be pivotally coupled to the top of the basketball
goal post such that they “extend upwardly and laterally away from the post”
and “aid in spreading portions of the wall.” Id. at 27:16–22, Figs. 15–17.
Together, those disclosures clearly suggest that the upper perimeter
member may include a rigid rod extending in cantilevered fashion from the
top of the post, which a skilled artisan would understand to be another way
of spreading the net wall into the claimed open configuration without the
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need for intermediate arms. Nowhere do we discern from the Specification
that the intermediate arms are essential to achieving the claimed spread open
configuration. In our view, the Specification reasonably conveys to a skilled
artisan that Appellant had possession of the invention in the manner recited
by the claims. And because the Examiner errs in finding to the contrary, we
do not sustain the rejection of the claims as lacking written description
support under 35 U.S.C. § 112(a).
B. Indefiniteness (Claims 21, 23–27, 29–34, and 36–40)
The Examiner’s basis for rejecting the claims as indefinite under 35
U.S.C. § 112(b) is substantially similar to that discussed above in rejecting
the claims as lacking written description support. See Final Act. 5–8. For
instance, the Examiner maintains that the claims lack clarity “in view of the
omission of the intermediate arms which would appear . . . to be necessary
for achieving the particularly claimed shape of the flexible wall in the spread
open configuration.” Ans. 8; see also id. at 9 (“The recitation of the
particularly claimed wall shape with the omission of the structure (or step
for securing the structure) that is disclosed as producing that shape
introduces ambiguity to the claims.”). But, as discussed above, the upper
perimeter members are also capable of supporting the net wall in a spread
open configuration. As such, we perceive no ambiguity in the claims from
the omission of the intermediate members. Thus, we do not sustain the
rejection of the claims as being indefinite under 35 U.S.C. § 112(b).
C. Obviousness (Claims 21, 24–27, 30–32, 40)
Appellant argues claims 21, 24–27, 30–32, and 40 as a group,
presenting arguments with respect to the Examiner’s rejection of
independent claim 21 and “the claimed method.” See Appeal Br. 17–18.
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We select independent claim 21 as representative, with claims 24–27, 30–32,
and 40 standing or falling with claim 21. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Keehn discloses the claimed method of using
a backstop netting wall to stop an errantly shot basketball, including the
steps of attaching an upper edge of the netting wall to the top end of a
basketball goal post and spreading left and right portions of the wall (20, 21)
laterally away from the post to stop an errant basketball. See Final Act. 9
(citing Keehn, 4:15–18, 5:8–10, 6:42–51, Figs. 1, 5–8). The Examiner
further finds that Keehn’s netting wall is shaped as claimed when in the
spread open configuration. See id. (citing Keehn, 4:31–34, Fig. 1). And
because Keehn states that the number of net sections may vary depending on
the location, the Examiner also finds that the additional side net section (22)
of Keehn is optional. See Ans. 11 (citing Keehn, 5:3–7).
The Examiner acknowledges, however, that Keehn lacks the steps of
pivotally connecting left and right base arms to the bottom end region of the
post, spreading and gathering the wall by pivoting the base arms, and storing
the wall in the gathered position. Final Act. 10. For those steps, the
Examiner directs our attention to Mark’s teaching of pivotally connecting
left and right base arms (47) to the bottom end of a central post (29) in order
to spread the wall (51) laterally away from the post and thereby form an
easily erectable and collapsible backstop wall. See id. at 10–12 (citing Mark
1:41–52, 4:50–63, 5:8–13, 6:66–7:25, Figs. 5, 7). According to the
Examiner, a skilled artisan would have deemed it obvious, in view of the
teachings of Keehn and Mark, to modify Keehn’s method to include the
additional steps taught by Mark (i.e., pivotally attached arms for the netting),
in order to achieve the advantage of permitting the backstop wall to be easily
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spread open for use and collapsed for storage. See id. at 11–12 (citing Mark,
1:41–52).
Appellant counters with essentially three arguments. Appeal Br. 15–
22. To begin, Appellant argues that, because Keehn’s net wall “can already
be easily erected and collapsed for compact storage . . . by moving the
movable bases and vertical support poles,” a skilled artisan would have “no
motivation” to replace Keehn’s support structure with Mark’s lower and
upper frame elements. Appeal Br. 15–16. We disagree. As the Examiner
persuasively explains, a skilled artisan “would immediately recognize that
pivoting the arms against the post in the manner taught by Mark would be
simpler than moving the weighted bases of Keehn . . . to a position near the
post and would therefore be an improvement over the movable weighted
bases of Keehn.” Final Act. 34 (citing Keehn, 8:15–18, Mark, 1:40–52); see
also Ans. 13–14 (citing Mark 2:4–31). We see no error in that reasoning.
Clearly the erection of Keehn’s partition walls is more cumbersome than that
of Mark’s partition walls, in that Keehn requires separately lifting and
moving each support pole to a location away from the central basketball
post, whereas Mark requires simply pivoting each support pole from a single
location at the central post. Thus, we are persuaded that the Examiner
articulates sufficient reasoning with rational underpinning for why a skilled
artisan would modify Keehn’s cumbersome arrangement for erecting and
collapsing a backstop net with Mark’s simpler and more compact
arrangement.
Next, Appellant argues that the Examiner’s proposed modification of
Keehn in view of Mark does not spread the net wall portions “by pivoting
the left and right base arms as required by claim 21,” but instead spreads the
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net wall portions by unfolding the upper frame elements 71 away from the
lower frame element 47 only “after [] the lower frame element 47 has been
pivoted to be horizontal” (as shown in Mark Figure 4A). Appeal Br. 17–18.
That argument is unpersuasive because, as the Examiner correctly notes, a
reasonable interpretation of the claim permits an additional (albeit unrecited)
step for achieving the spread open configuration “because it is clear from
Appellant's disclosure that the intermediate portions of the wall are not
spread to the claimed locations simply by pivoting the left and right base
arms, but require the additional step of securing intermediate arms to the left
and right wall portions which is not recited in the claims.” Ans. 14.
To that end, we note Appellant’s admission that achieving the claimed
“spread open configuration” may encompass not only pivoting lower base
arms 102, 104 but also “other structure,” such as upper perimeter members
130 and/or upper spreading arms 1550. See Reply Br. 4 (“Other structure
capable of the achieving the shape in the claimed method is clearly disclosed
(perimeter member itself-page 15, lines 22 to page 16, line 2; upper
spreading arms-page 27, lines 16–22).”). Moreover, in contrast to the fully
collapsed configuration depicted in Mark’s Figure 4, upper frame elements
71 depicted in Mark’s Figure 4A are clearly in the process of being spread
open by the pivoting action of lower frame elements 47 from a vertical
position to a horizontal position. See Mark, 2:66–67, Figs. 4, 4A. Thus, we
reject the notion that, as modified to include Mark’s teaching of pivotally
attached frame elements, Keehn fails to teach the “spreading” step of the
claimed method.
Lastly, Appellant argues that the Examiner’s proposed modification of
Keehn “fundamentally changes the structure and way in which the netting is
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supported” and “change[s] Keehn’s principle of operation.” Appeal Br. 18–
19. According to Appellant, Keehn’s movable bases “are essential to
Keehn’s objects” because they “allow for selective positioning of the net
segments,” which, in turn, “allows Keehn to be customized in different
planes and angles.” Id. at 20. As such, Appellant surmises that adding a
lower frame element pivotally attached to the basketball post, as taught by
Mark, in place of Keehn’s movable bases and vertical poles “destroys
Keehn’s ability to have netting extending in multiple planes to block
multiple areas and, therefore, would defeat Keehn’s goals.” Id.
While we acknowledge that the Examiner’s proposed modification
changes the way in which Keehn’s netting is supported, namely, by pivotally
attaching lower frame elements to the bottom of the post and upper frame
elements to the top of the post, as taught by Mark, we disagree that this
modification changes Keehn’s principle of operation. As the Examiner
persuasively explains, the substitution of Mark’s pivotally-attached frame
elements for Keehn’s free-standing configuration of moveable bases and
vertical poles would have no effect on Keehn’s essential function of
stopping an errantly shot basketball from rolling into the street by providing
a net wall around a basketball goal while also providing the advantage of
being easily erected and collapsed. Ans. 15. We see no error in that
reasoning, given Keehn’s overall safety objective of “provid[ing] netting
around a basketball goal in order to help prevent a basketball from rolling
into a street during a recreational basketball game.” Keehn, 1:8–14.
Moreover, nowhere do we discern that adjustability of Keehn’s
moveable bases and vertical poles “in different planes and angles” is
“essential” to Keehn’s functionality, as Appellant argues. See Appeal Br.
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20. In fact, if anything, Keehn contemplates potential alteration of the
netting’s support structure by removing sections of netting — “it also should
be understood that there can be any number of sections of netting connected
to and supported by any number of vertical poles mounted in movable bases
depending on the requirements of the location of the basketball goal post.”
Keehn, 5:3–7 (emphasis added). Therefore, Keehn itself clearly envisions
instances where the location of the basketball goal post requires elimination
of sections of netting, including their supporting bases and vertical poles.
As such, we are not persuaded that the proposed modification of Keehn’s
netting structure would render Keehn unsuitable for its intended purpose of
blocking an errantly shot basketball from rolling into the street.
For the above reasons, Appellant does not apprise us of error in the
Examiner’s conclusion that the combined teachings of Keehn and Mark
render obvious the subject matter of independent claim 21. Accordingly, we
sustain the rejection of claim 21 as unpatentable over Keehn and Mark. We
also sustain the rejection of claims 24–27, 30–32, and 40, for which
Appellant does not present any separate arguments and which thus fall with
claim 21.
D. Obviousness (Claims 23, 33, 34, and 36–39)
The Examiner rejected claims 23, 29, 33, 34, and 36–39 as obvious
over Keehn, Mark, and Barnes. Final Act. 16–22. Except for arguing
dependent claim 37 separately, Appellant does not otherwise present any
additional argument in dispute of this rejection. See Appeal Br. 23 (stating
simply that “Barnes does not cure the deficiencies discussed above.”). As
such, we understand Appellant to be relying on arguments that we have
already deemed unpersuasive for the reasons discussed above. Thus,
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without more, we sustain the Examiner’s rejection of claims 23, 29, 33, 34,
38, and 39.
As for dependent claim 37, the Examiner finds that, when modified by
Mark, Keehn’s wall portions 20, 21 “together defin[e] half an octagon.”
Final Act. 21–22. Appellant responds by repeating claim 37’s recitation that
the perimeter edges of the wall “define a semi-octagonal shape,” while
baldly asserting that “no such shape is found in Keehn or Mark.” Appeal Br.
23. We note that Mark’s upper frame elements 71 project vertically inward
and upward from base arms 47 before reaching transition point 75. See
Mark, Fig. 2. As such, a skilled artisan would understand that Keehn’s wall
portions 20, 21, when modified to include the pivotally connected base arms
taught by Mark, may also be modified such that vertical frame elements 26,
27 project inward toward central post 28, as also taught by Mark, thereby
forming a semi-octagonal shaped structure. Thus, contrary to Appellant’s
position, the combined teachings of Keehn and Mark provide evidentiary
support for the Examiner’s rejection of claim 37. As such, we sustain the
Examiner’s rejection of claim 37.
E. Double Patenting
Appellant does not contest the Examiner’s non-statutory double
patenting rejections of claims 21, 23–27, 29–34, and 36–40. Compare Final
Act. 24–29, with Appeal Br. 23. Absent any argument from Appellant, we
understand Appellant to have waived any assertion of error, and
we summarily sustain the double patenting rejections of these claims. See
Hyatt v. Dudas, 551 F.3d 1307, 1314 (Fed. Cir. 2008) (explaining that
summary affirmance without consideration of the substantive merits is
appropriate where an appellant fails to contest a ground of rejection).
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CONCLUSION
We reverse the Examiner’s § 112(a) and § 112(b) rejections of the
pending claims, but affirm the Examiner’s § 103 prior art rejections and
double patenting rejections of the claims.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
21, 23–27,
29–34, 36–
40
112(a) Written Description 21, 23–27,
29–34, 36–
40
21, 23–27,
29–34, 36–
40
112(b) Indefinite 21, 23–27,
29–34, 36–
40
21, 24–27,
30–32, 40
103(a) Keehn, Mark 21, 24–27,
30–32, 40

23, 29, 33,
34, 36–39
103(a) Keehn, Mark, Barnes 23, 29, 33,
34, 36–39

21, 24–27,
30–32, 40
Obviousness-type
Double Patenting
21, 24–27,
30–32, 40

23, 29,
33,34, 36–39
Obviousness-type
Double Patenting
23, 29, 33,
34, 36–39

Overall
Outcome2
21, 23–27,
29–34, 36–
40

2 37 C.F.R. § 41.50(a)(1) states: “The affirmance of the rejection of a claim
on any of the grounds specified constitutes a general affirmance of the
decision of the examiner on that claim.”
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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED