Kurt Hafeken et al.

Patent Trials and Appeals Board

Sep 27, 2019

13603119 - (D) (P.T.A.B. Sep. 27, 2019)

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.
13/603,119 09/04/2012 Kurt Hafeken SR. CEN100-00/12262 1200
24118 7590 09/27/2019
HEAD, JOHNSON, KACHIGIAN & WILKINSON, PC
228 W 17TH PLACE
TULSA, OK 74119
EXAMINER
FISCHER, RAE
ART UNIT PAPER NUMBER
3784
NOTIFICATION DATE DELIVERY MODE
09/27/2019 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):
kbartley@hjkwlaw.com
mgatlin@hjkwlaw.com
thamm@hjkwlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KURT HAFEKEN SR. and
JEFFREY WOODSON
____________________

Appeal 2017-011491
Application 13/603,119
Technology Center 3700
____________________

Before MICHAEL C. ASTORINO, CYNTHIA L. MURPHY, and
SCOTT C. MOORE, Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 4–8, 11–18, and 20, which are all of
the pending claims. We have jurisdiction under 35 U.S.C. § 6.
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Century,
LLC. Appeal Br. 1.
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Claimed Subject Matter
The claims are directed to a training bag to be used, for example, in
martial arts training. Spec. 2. Claim 1, reproduced below, is the only
independent claim on appeal.
1. A training bag comprising:
a bag, where the bag has an elongated shape
with a first end and a second end and where the bag
comprises a foam cylinder at least partially
surrounded by a vinyl cover; and
a base with a top and a bottom, where the bag
removably attaches to the top of the base at the
second end of the bag, where the base rests on a
floor when in use, and where the base has a dynamic
geometry and is filled with material that allows the
base to deform when the bag is struck, such that the
base changes geometry and remains in contact with
the floor when the training bag is struck and the
allows the bag to rebound to a vertical position.
References and Rejections
The Examiner relies on the following references in rejecting the
claims on appeal:
Kuo
Carlin
Tsakiris
Hartigan
US 6,106,443
US 6,790,167 B1
US 8,376,916 B2
US 8,814,729 B2
Aug. 22, 2000
Sept. 14, 2004
Feb. 19, 2013
Aug. 26, 2014
Claims 1, 4–8, 11, 13–18, and 20 stand rejected under 35 U.S.C. § 103
as being unpatentable over Hartigan, Carlin, and Tsakiris. Ans. 2. Claim 12
stands rejected under 35 U.S.C. § 103 as being unpatentable over Hartigan,
Carlin, Tsakiris, and Kuo. Id.
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ANALYSIS
Appellant’s arguments are directed solely to independent claim 1, and
Appellant does not raise any separate substantive arguments concerning any
of dependent claims 4–8, 11–18, or 20. See Appeal Br. 14–15; Ans. 2.
Accordingly, claims 4–8, 11–18, and 20 stand or fall with claim 1.
37 C.F.R. 41.37(c)(1)(iv).
The Examiner finds that Hartigan teaches all limitations of claim 1
except for foam padding that is cylindrical in shape surrounded by a vinyl
cover. Ans. 3–4. The Examiner relies on Tsakiris to supply the recited foam
cylinder, determining that it “would have been obvious to one of ordinary
skill in the art to extend the foam padding of Hartigan around the bag,
resulting in a cylindrical shape, as taught by Tsakiris to make the bag more
flexible to use.” Id. at 4. The Examiner relies on Carlin to disclose the
recited vinyl cover, determining that it “would have been obvious to one of
ordinary skill in the art at the time of the invention to modify the device of
Hartigan to include the vinyl cover taught by Carlin to add durability and
soften the striking surface.” Id.
Appellant raises numerous arguments in response. We have reviewed
these arguments in detail and find them all to be unpersuasive. Appellant’s
primary arguments are addressed below.
First, Appellant argues that the ballast of Hartigan does not provide a
“righting function” because it
does not teach that the base has a dynamic geometry
that changes when the bag is struck, keeping the bag
in contact with the floor and allowing the bag to
rebound to a vertical position. Rather, the dummy
of Hartigan is specifically designed to disengage
from the base upon being struck.
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Appeal Br. 8. This argument is not persuasive.
As Appellant acknowledges, Hartigan teaches a dummy mounted on
“a sled made from a flexible material and inflated with air, and provides an
option of including a chamber in the sled that is filled with a ballast.” Id.
The Examiner explains that the disclosed ballast would function to keep
Hartigan’s base (i.e., sled) in contact with the floor. Ans. 6–7. It is apparent
that Hartigan’s inflatable, flexible base, when used with ballast, would be
filled with a material (i.e., air) that would “allow[] the base to deform when
the bag is struck, such that the base changes geometry and remains in
contact with the floor when the training bag is struck and the allows the bag
to rebound to a vertical position,” as recited in claim 1. In this regard, we
note that the language of claim 1 is broad, and does not require a base that
would deform and return the bag to a vertical position in response to all
types of impacts. As the Examiner observes, claim 1 could encompass a
base that deforms and then returns the bag to a vertical position in response
to a “light strike,” even if a harder blow might cause the bag to detach from
the base. See id. at 7.
We also agree with the Examiner’s determination that Hartigan’s
flexible, air-filled base has a “dynamic geometry” because it changes shape
in response to an application of force or a change in the inflation pressure.
See id. at 5–6. Appellant does not offer any persuasive explanation to the
contrary. See Appeal Br. 8–9.
In addition, Appellant’s argument that Hartigan’s device could tear in
certain circumstances (see id. at 9) is not persuasive. Claim 1 does not
require a tear-proof device. Moreover, one skilled in the art would have
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understood that Hartigan’s dummy, which is designed to be tackled
repeatedly, could be made of a tear-resistant material.
We also are not persuaded that the Examiner erred in the evaluation of
the cited portions of the testimony in the first declaration Tibor Siklosi. See
June 15, 2015 Declaration Supporting Amendment (the “First Declaration”
or “First Decl.”); Ans. 14–18.
Mr. Siklosi testifies in paragraphs 4 and 14 of his First Declaration
that Hartigan’s ballast would not provide a righting function. But claim 1
does not require ballast that “provides a righting function,” and this
testimony does not adequately address the Examiner’s determination that
Hartigan’s flexible, air-filled base would deform, and then return to its
original orientation, returning the dummy to an upright position after the
dummy was struck. Mr. Siklosi also does not adequately explain his opinion
that the addition of ballast would prevent the flexible, air-filled base from
deforming and then rebounding. See First Decl. ¶¶ 4, 14.
In paragraph 6 of the First Declaration, Mr. Siklosi testifies that the
“fundamental basis” of Hartigan’s system “is a forceful separation of a
temporarily joined device by way of two people carrying diametrical
forces.” But Mr. Siklosi does not identify any limitation in claim 1 that
would exclude a system of the type disclosed in Hartigan.
In paragraph 7 of the First Declaration, Mr. Siklosi does not identify
any claim limitation that requires a dummy “conducive for boxing training.”
In paragraphs 8 and 9 of the First Declaration, Mr. Siklosi similarly fails to
identify any limitation of claim 1 that would exclude a dummy that is
releasably attached to a base via Velcro, and also does not explain why
Hartigan’s dummy would not rebound to a vertical position subjected to an
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impact insufficient to detach the dummy from its base. Paragraphs 10 and
11 of the First Declaration do not adequately explain why ballast would have
prevented Hartigan’s base from deforming.
Next, Appellant argues that one of ordinary skill in the art would not
have had reason to extend the foam padding of Tsakiris around the dummy
of Hartigan in a cylindrical shape, in the manner proposed by the Examiner.
According to Appellant, if Hartigan’s device were padded by external foam
or filled with internal foam, it would no longer function. Appeal Br. 10–11.
This argument is not persuasive.
As the Examiner points out, Hartigan teaches that the dummy may be
cylindrical, and also may include external foam pads. See Ans. 11 (citing
Hartigan, 8:4–6, 9:57). The Examiner determines that it would have been
obvious to “modify the device of Hartigan to include the foam about the
entire circumference of the device to give a desired hardness to the surface
of the device (as taught by Hartigan, Col. 8, Lines 12–23).” Id. at 11–12.
Appellant does not offer any persuasive explanation to support its
contention that extending Hartigan’s foam pads around the entire
circumference of the device would prevent that device from functioning.
See Appeal Br. 10–11. For example, the cited paragraph of the First
Declaration does not adequately explain why such a device would no longer
function. See First Decl. ¶ 13. Appellant’s related argument that Hartigan’s
device would not function if filled with internal foam is not persuasive
because the Examiner has not suggested that it would have been obvious to
modify Hartigan’s dummy in this manner. See Ans. 13.
Appellant’s third primary argument is that one of ordinary skill would
not have had sufficient reason “to combine any of the prior art references.”
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Appeal Br. 11. According to Appellant, Hartigan and the other cited prior
art references “addres[s] wholly different issues and [are] incapable of
achieving the goals of the subject invention.” Id. This testimony, and
corresponding paragraph 5 of the First Declaration, are conclusory and do
not persuade us of error in the Examiner’s rejection. Neither Appellant, nor
Mr. Siklosi, adequately explain why the cited references allegedly “are
incapable of achieving the goals of the subject invention.” See id.; Siklosi
Decl. ¶ 5. In any event, the rationale for combining prior art references can
be something other than the goals of the claimed invention.
Finally, Appellant argues that the Examiner has not given sufficient
weight to the evidence of commercial success set forth in a later declaration
of Tibor Siklosi. See Feb. 2, 2016, Second Declaration Supporting
Amendment (the “Second Declaration” or “Second Decl.”). On this record,
we are not persuaded that the Examiner so erred.
For example, Mr. Siklosi testifies in paragraph 4 of his Second
Declaration that Century LLC’s VSI product (part of the Versys line of
products) embodied the claimed invention. But Mr. Siklosi does not include
any diagrams or descriptions of the Versys product, much less compare this
product to the limitations recited in the claims. Thus, we are not persuaded
that the Examiner erred in determining that Appellant “has provided no
evidence of a nexus” between any alleged commercial success “and the
subject matter as claimed.” Ans. 19.
Mr. Siklosi testifies in paragraph 5 of the Second Declaration that the
VSI product constitutes 70% of the Versys product line, and provides Versys
sales figures for 2013, 2014, and 2015. Mr. Siklosi then testifies that sales
of Versys products were increasing while sales of two other product lines
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were decreasing during the same period. See Second Decl. ¶¶ 7–8. But the
cited evidence does not demonstrate a difference of sales trends attributable
to the claimed invention. For example, Mr. Siklosi does not testify when
during 2013 the VSI product was introduced. See id. at ¶ 5. Thus, it is not
possible to determine any trend by comparing Mr. Siklosi’s 2013 sales
figure (which likely represent a partial year) to the sales of other product
lines during 2013, or to sales of the Versys product line during 2014 and
2015. During 2014 and 2015 (the only years for which Mr. Siklosi provides
full-year sales figures for all products), sales of the three product lines
described in the Second Declaration were all relatively flat. Though sales of
the Versys line increased slightly, this may well have been because the per-
unit price decreased from an average of $83.04 per unit during 2014, to
$80.01 per unit during 2015.2 In contrast, the per-unit prices of the other
two product lines increased between 2014 and 2015.3 In other words, it
appears that Century LLC was discounting the Versys product line while
raising the prices of the other two product lines. The Second Declaration
does not demonstrate any definite sales trends, much less establish an
upward trend in Versys sales that was attributable to the claimed invention.
For at least these reasons, we are not persuaded that the Examiner erred in
determining that Appellant has failed to present adequate evidence “of the
sales of this device relative to the market” as necessary to demonstrate
commercial success. Ans. 18.

2 These figures were calculated by dividing the sales in dollars set forth in
paragraph 5 of the Second Declaration by the corresponding sales in units.
3 The average price of the Wavemaster line increased from $39.22 per unit
during 2014 to $44.53 during 2015, and the average price of the Bob line
increased from $174.35 per unit during 2014 to $178.46 during 2015.
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Mr. Siklosi also testifies that the VSI product also has received praise
on websites such as Amazon.com. See Second Decl. ¶¶ 12–13. We agree,
however, with the Examiner’s observation that this evidence of consumer
praise is anecdotal in nature. See Ans. 20. For example, the Second
Declaration does not demonstrate that any significant portion of customers
found the claimed features to be important. Thus, we also are not persuaded
that the Examiner erred in the evaluation of this evidence of consumer
praise.
For the foregoing reasons, we are not persuaded that the Examiner
erred, and we affirm the decision rejecting claims 1, 4–8, 11–18, and 20.
DECISION
In summary:
Claims
Rejected
Basis Affirmed Reversed
1, 4–8, 11, 13–
18, 20
§ 103, Hartigan, Carlin,
Tsakiris
1, 4–8, 11,
13–18, 20

12 § 103, Hartigan, Carlin,
Tsakiris, and Kuo
12
Overall
Outcome
1, 4–8, 11–18,
20

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