Marty Gilman, Inc.Download PDFPatent Trials and Appeals BoardMar 30, 20212020005704 (P.T.A.B. Mar. 30, 2021) Copy Citation 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. 15/695,412 09/05/2017 Neil F. Gilman 23001.22.114.USI1 9412 94740 7590 03/30/2021 Winthrop & Weinstine, P.A. Capella Tower, Suite 3500 225 South Sixth Street Minneapolis, MN 55402 EXAMINER PENG, RAYSHUN K. ART UNIT PAPER NUMBER 3711 NOTIFICATION DATE DELIVERY MODE 03/30/2021 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): Winthropdocketing@cpaglobal.com patent@winthrop.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte NEIL F. GILMAN Appeal 2019-005704 Application 15/695,412 Technology Center 3700 ____________ Before JENNIFER D. BAHR, DANIEL S. SONG, and MICHAEL J. FITZPATRICK, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appellant, Marty Gilman, Inc.,1 appeals under 35 U.S.C. § 134(a) from the Examiner’s non-final decision rejecting claims 1, 2, 4–9, 11–15, and 18–22. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42. Appellant identifies itself as the sole real party in interest. Appeal Br. iv. Appeal 2019-005704 Application 15/695,412 2 STATEMENT OF THE CASE The Specification The Specification “relates to athletic equipment, particularly training equipment for teaching football tackling techniques.” Spec. 1. The Claims Claims 1, 2, 4–9, 11–15, and 18–22 are rejected. Final Act. 1. A rejection of claims 16 and 17 was withdrawn. Jan. 24, 2020, Notice of Panel Decision from Pre-Appeal Brief Review; see also Ans. 3. Claims 3 and 10 are cancelled. Appeal Br. 32–33. No other claims are pending. Id. at 31– 37. Claims 1, 16, and 20 are independent. Id. Claim 1 is illustrative of the claimed subject matter on appeal and is reproduced below. 1. A method of training football players to tackle an opposing player about the opposing player’s body thickness to reduce risk of concussion and other injury, comprising: a) providing a circular tackling ring device having a cross sectional dimension and center height that simulates the body thickness of a football receiver, the ring including a toroidal structure defined by front and back annularly shaped fabric planar faces defining an opening at a center thereof, said faces being connected and intersected by inner and outer annular fabric planar walls to define and surround a toroidal volume, the toroidal volume being filled with a monolithic, unitary toroidally-shaped flexible, compressible polyether foam body configured to cushion and protect a user that tackles the tackling ring, the tackling ring having a rectangular cross- section, wherein: i) the tackling ring device is defined by an outer planform diameter, an inner planform dimension, and a thickness defined by the distance between the front and back faces representative of the body thickness of the opposing player; Appeal 2019-005704 Application 15/695,412 3 ii) the outer planform diameter is between about 42 inches and about 60 inches to simulate the size of an opposing player; and iii) the thickness is about 12 inches to about 16 inches to simulate the body thickness of the opposing player; b) rolling the circular tackling ring device across a practice field for a practicing football player to simulate tackling an opposing player; and c) tackling the ring, wherein the practicing football player tackles the ring by wrapping their arms around an annular region of the ring to simulate wrapping their arms around an opposing player’s body thickness while placing their head to the outside of the ring to simulate placing their head to a side of an opposing player’s body, wherein the practicing football player falls on top of the ring after tackling the ring, and further wherein the compressible polyether foam body cushions the practicing football player’s landing to protect the player from injury. Id. at 31–32. The Examiner’s Rejections The rejections before us are: 1. claim 22 under 35 U.S.C. § 112(b) as indefinite (Non-Final Act. 2); 2. claims 1, 2, 4–9, 15, and 22 under 35 U.S.C. § 103 as unpatentable over Trysaver2 (id. at 3); 3. claims 11–14 and 21 under 35 U.S.C. § 103 as unpatentable over Trysaver, Wynn,3 and New England Foam4 (id. at 9); 2 https://www.youtube.com/watch?v=8ekNy7PXAvM, published July 14, 2013 (“Trysaver”). 3 US 2,586,283, issued Feb. 19, 1952 (“Wynn”). 4 https://web-beta.archive.org/web/20101026155021/http://newenglandfoam Appeal 2019-005704 Application 15/695,412 4 4. claim 20 under 35 U.S.C. § 103 as unpatentable over Trysaver and Goal Line Tackling Drill5 (id. at 15); and 5. claims 18 and 19 under 35 U.S.C. § 103 as unpatentable over Trysaver, Goal Line Tackling Drill, and Wide Receiver Blocking Drills6 (id. at 16). DISCUSSION Rejection 1—Indefiniteness The Examiner rejected dependent claim 22 under 35 U.S.C. § 112(b) as indefinite because “the metes and bounds of the limitation ‘running at full speed’ cannot be determined, as this is a relative term and full speed is not well defined.” Non-Final Act. 2; see also Ans. 7 (The term “‘running at full speed’ is indefinite, as that is a subjective term, since every person has a different running speed.”). Appellant argues that “running at full speed” is “hardly indefinite” because “[o]ne of skill in the art would understand that this claim simply means what it says - that the football player tackles the ring running at full speed.” Appeal Br. 17. Although this is a somewhat conclusory argument, we nonetheless agree with Appellant that a person of ordinary skill would understand the meaning of this claim language, which “is as precise as the subject matter permits.” Hybritech, Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1385 (Fed. Cir. 1986); see also Orthokinetics, Inc. v. Safety .com/polyether.html (“New England Foam”). 5 https://web-beta.archive.org/web/20151010011819/https://www.foot balldrills.com/linebacker-drills/tackling-drills/goalline-tackling-drill/(“Goal Line Tackling Drill”). 6 https://www.youtube.com/watch?v=aL1vpPkA2x4, posted July 10, 2011 (“Wide Receiver Blocking Drills”). Appeal 2019-005704 Application 15/695,412 5 Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (finding sufficient definiteness for claim limitation reciting ‘wherein said front leg portion [of a wheelchair] is so dimensioned as to be insertable through the space between the doorframe of an automobile and one of the seats”). Accordingly, we reverse the rejection of claim 22 as indefinite. Rejection 2—Obviousness in View of Trysaver The Examiner determined that claims 1, 2, 4–9, 15, and 22 would have been obvious over Trysaver. Non-Final Act. 3. We address claim 1 first. Trysaver is a video one minute and fifteen seconds in length. Trysaver. The video showcases Hart Sport’s “Trysaver Tackle Ring,” which the video describes as “great for teaching young rugby players correct tackling techniques” (id. at 27–29 sec) and “perfect for older players who want to improve their core tackling skills.” Id. at 38–42 sec. The video states that the Trysaver Tackle Ring is available in two sizes, junior and senior (id. at 61–54 sec), and displays both sizes adjacent to one another. Id. at 24 sec. Claim 1 The Examiner found that Trysaver teaches all of the subject matter of claim 1 except that it does not explicitly teach (1) “the toroidal volume being filled with a monolithic, unitary toroidally-shaped flexible, compressible polyether foam” or (2) the “diameter” and “thickness” range limitations. Non-Final Act. 3–4. With respect to the first limitation, the Examiner noted (correctly) that Trysaver shows “the tackle ring is compressible and one of ordinary skill in the art would readily recognize the device would be cushioned to protect the Appeal 2019-005704 Application 15/695,412 6 football player tackling the ring as seen in the video.” Id. at 4 (citing Trysaver at 12–14 sec). Although the Examiner cited only the portion of the video elapsing from 12 to 14 seconds, Trysaver repeatedly shows compression of the tackle ring in additional tackling scenes. See, e.g., Trysaver at 27–50 sec). Two still images taken from Trysaver at 13 and 50 seconds, respectively, are reproduced below. Both of these images, reproduced above, show compression of the tackle ring. Id. at 13 sec, 50 sec. The Examiner determined that “one of [ordinary] skill in the art would have readily recognized to use polyether foam as the desired foam to provide Appeal 2019-005704 Application 15/695,412 7 appropriate cushioning to a player.” Non-Final Act. 4. In support, the Examiner cited In re Leshin, 277 F.2d 197, 199 (CCPA 1960) as holding that mere selection of known materials to make an apparatus of a type made of said material prior to the invention, the selection of said material being on basis of suitability for intended use, is obvious. Non-Final Act. 4; Leshin, 277 F.2d at 199 (“Mere selection of known plastics to make a container- dispenser of a type made of plastics prior to the invention, the selection of the plastics being on the basis of suitability for the intended use, would be entirely obvious.”). With respect to the range of diameter and range of thickness limitations, the Examiner determined that they provide merely a change in size but not function or performance. Non-Final Act. 4 (citing MPEP § 2144.04 (IV)(A)). The cited MPEP provision, in turn, cites to case law that supports the Examiner’s determination here that a change in size is not a patentable distinction. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955) (Claims directed to a lumber package “of appreciable size and weight requiring handling by a lift truck” where held unpatentable over prior art lumber packages which could be lifted by hand because limitations relating to the size of the package were not sufficient to patentably distinguish over the prior art.); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) (“mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled.” 531 F.2d at 1053, 189 USPQ at 148.). In Gardnerv.TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than Appeal 2019-005704 Application 15/695,412 8 the prior art device, the claimed device was not patentably distinct from the prior art device. MPEP § 2144.04 (IV)(A). Further, the Examiner found that Trysaver itself teaches tackle rings of different sizes and therefore it would have been obvious to one of ordinary skill to provide a ring of appropriate size for a user. Appellant argues that because Trysaver is a “rugby training video,” it cannot render obvious “claims directed to methods for training ‘football’ tackling technique.” Appeal Br. 4. The Examiner responds that “the claims in essence are a method for teaching tackling using a tackling ring, and Trysaver as evidenced by the video, provides a tackling ring used to teach tackling methods.” Ans. 4. The Examiner also points out that Appellant’s own “disclosure provides embodiments of a tackling ring training device and associated methods of use that facilitate the teaching of ‘rugby style’ tackling, but in the context of American football.” Spec. 3 (emphasis added); Ans. 4 (citing the same). For at least this reason, Appellant does not apprise us of error in its rugby/football distinction.7 Appellant argues that Trysaver “teaches against tackling around an opposing player’s waist, because it teaches tackling around an opposing player[’]s knees or calves.” Appeal Br. 5. This argument is factually 7 Although not explicitly addressed by the Examiner or Appellant, the broadest reasonable construction of the term “football” in view of the Specification includes rugby. According to dictionary.com, “football” can refer to, among other things, “rugby.” See https://www.dictionary .com/browse/football. Notably, the Specification repeatedly refers to “American football” (Spec. 2, 3, 5, 7) or “American style football” (id. at 3) but the claims recite the more generic term “football.” Appeal 2019-005704 Application 15/695,412 9 unsupported and legally inapposite. A still image taken from Trysaver at 39 seconds is reproduced below. The still image, reproduced above, shows a player tackling the tackle ring at a height of approximately his own waist (or slightly higher). Id. at 39 sec. Additionally, and as the Examiner points out, claim 1 does not recite tackling (or simulating) tackling around the waist. Ans. 4. It recites “to simulate wrapping their arms around an opposing player’s body thickness.” Appeal Br. 32. We agree with the Examiner’s construction of “body thickness” as including a player’s legs, as they are part of the body. Ans. 4– 5. Appellant does not specifically dispute this construction. See generally Reply Br. Appellant argues that Trysaver teaches against using polyether foam because Trysaver describes its tackle ring as “using a ‘high density’ foam to provide a ‘realistic impact’.” Appeal Br. 7. Appellant argues that its polyether foam “typically has a density in the range of 1.0 and 1.8 lbs./ft3” (id. at 8 (citing http://www.qualityfoam.com/polyether-polyurethane.asp)), whereas “a ‘high density’ foam typically has a density of 5.0 lbs./ft3 or more (id. (citing https://www.sleepadvisor org/memory-foam-density-guide/)). Appeal 2019-005704 Application 15/695,412 10 Appellant further argues that Trysaver uses such a high density “in order to achieve the highly touted ‘REALISTIC IMPACT’.” Appeal Br. 9 (quoting Trysaver at 47 sec). This argument is not persuasive of error. First, “low” and “high” are merely relative terms and, without more, do not refer to specific numeric values or ranges. Further, what may be considered high density foam in the mattress industry is not necessarily informative as to what may be considered high density foam for a tackle ring. Also, we do not find Trysaver’s touting of its own product as providing a “REALISTIC IMPACT” as teaching away from using polyether. Trysaver shows tackle rings that are compressed by children. See supra (still images taken at 13 and 50 seconds reproduced above). The Examiner has provided sufficient reasoning for why a person of ordinary skill in the art would choose polyether foam in modifying the Trysaver tackle ring. Non-Final Act. 4 (citing In re Leshin, 277 F.2d at 199, and finding that “one of ordinary skill in the art would readily recognize the device would be cushioned to protect the football player tackling the ring as seen in the video”). Appellant argues at length that evidence of secondary considerations is probative of non-obviousness of the claims. Appeal Br. 18–30. However, “to be accorded substantial weight in the obviousness analysis, the evidence of secondary considerations must have a ‘nexus’ to the claims, i.e., there must be ‘a legally and factually sufficient connection’ between the evidence and the patented invention.” Henny Penny Corp. v. Frymaster LLC, 938 F.3d 1324, 1332 (Fed. Cir. 2019). Appellant bears the burden of proving nexus. In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995) (“For objective evidence to be accorded substantial weight, its proponent must Appeal 2019-005704 Application 15/695,412 11 establish a nexus between the evidence and the merits of the claimed invention.”); Demaco Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir. 1988) (“The burden of proof as to this connection or nexus resides with the patentee.”). Nexus can be established in one of two ways. First, “a patentee is entitled to a rebuttable presumption of nexus between the asserted evidence of secondary considerations and a patent claim if the patentee shows that the asserted evidence is tied to a specific product and that the product ‘is the invention disclosed and claimed.’” Fox Factory, Inc. v. SRAM, LLC, 944 F.3d 1366, 1373 (Fed. Cir. 2019) (quoting Demaco, 851 F.2d at 1392). “That is, presuming nexus is appropriate ‘when the patentee shows that the asserted objective evidence is tied to a specific product and that product [1] ‘embodies the claimed features, and [2] is coextensive with them.’” Id. (quoting Polaris Indus., Inc. v. Arctic Cat, Inc., 882 F.3d 1056, 1072 (Fed. Cir. 2018)). Thus, there are two requirements; it is not enough that a product be “claimed.” See, e.g., Fox Factory, 944 F.3d at 1373 (“We have reaffirmed the importance of the ‘coextensiveness’ requirement in subsequent opinions.”); see also Fox Factory, Inc. v. SRAM, LLC, 813 F. App’x 539, 542 (Fed. Cir. 2020) (“[W]e reaffirmed in [the first Fox Factory, (944 F.3d 1366)] that a product is not coextensive with a claimed invention simply because it falls within the scope of the claim.”). The second way to prove nexus is directly, by showing that the presented evidence of secondary considerations is “a direct result of the unique characteristics of the claimed invention.” In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996); Fox Factory, 944 F.3d at 1373–74 (“A finding that a presumption of nexus is inappropriate does not end the inquiry into Appeal 2019-005704 Application 15/695,412 12 secondary considerations. To the contrary, the patent owner is still afforded an opportunity to prove nexus by showing that the evidence of secondary considerations is the direct result of the unique characteristics of the claimed invention.” (quotation marks and citation omitted)). Appellant has not made a showing in this regard either. Appeal Br. 15–19. The need for a nexus between the claimed invention and the secondary considerations evidence is particularly evident in a case such as this one where the claimed invention is a method of training how to tackle using a tackle ring, and a very similar tackle ring (and training method) already existed in the prior art (i.e., Trysaver). See Fox Factory, 944 F.3d at 1378, providing: [Patentee] bear[s] the burden of proving that the evidence of secondary considerations is attributable to the claimed combination of wide and narrow teeth with inboard or outboard offset teeth, as opposed to, for example, prior art features in isolation or unclaimed features. See, e.g., Ethicon Endo-Surgery, Inc. v. Covidien LP, 812 F.3d 1023, 1034 (Fed. Cir. 2016) (for patent claims covering a combination of prior art features, to establish nexus, patentee must show that the evidence of secondary considerations is attributable to “the combination of the two prior art features ... that is the purportedly inventive aspect of the [challenged] patent” as opposed to unclaimed features or either prior art feature in isolation). Id. at 1378; see also Lectrosonics, Inc. v. Zaxcom, Inc., No. IPR2018-01129, Paper 33 at 61 (PTAB Jan. 24, 2020) (precedential) (“[T]here must be a nexus to some aspect of the claim not already in the prior art.”) (quoting In re Huai-Hung Kao, 639 F.3d at 1069 (Fed. Cir. 2011)). Appellant argues nexus under the first approach: presumption. More specifically, Appellant argues it “is entitled to a presumption of nexus because . . . the asserted objective evidence is tied to a specific product i.e., Appeal 2019-005704 Application 15/695,412 13 use of the Gilman Roll Tackle™ Ring products, and that product embodies the claimed features, and is coextensive with them.” Appeal Br. 2–3 (citing Lectrosonics, No. IPR2018-01129, at 61 (quotation marks omitted)). On its face, this statement is questionable. It refers to secondary considerations evidence regarding multiple “products” and then refers to an unidentified single “product” as embodying and being coextensive with “the claimed features.” Appeal Br. 2–3. The statement also fails to identify the claim or claims for which nexus purportedly should be presumed. Id. Appellant’s argument continues: Here, Claim 1 brackets the dimensions of all of Appellant’s successful products, down to the inch, and also requires a lightweight polyether core. Claims 11–14 in turn specify the four products of Appellant even more specifically, right down to the stitching used to enclose the lightweight foam cores. The evidence repeatedly refers to the lightweight cushioning of the core, and the dimensions of the product as bases for industry praise. Id. at 3. These arguments are both conclusory and vague. They do not address the specific legal requirements for a presumption of nexus—to identify a product and show, on a claim by claim basis, that it (1) embodies the claimed features, and (2) is coextensive with them. See Fox Factory, 944 F.3d at 1373. Later in the Appeal Brief, Appellant argues: It is described in the Gilman Declarations that all of the tackling ring products it sells are bookended by Claim 1, and wherein each of Claims 11–14 each correspond dimensionally and most specifically and directly to its 60 inch, 52 inch, 48 inch and 42 inch rings. (10/7/2016 Gilman Decl. ¶5) As such, Appellant is entitled to a presumption of a nexus with the objective evidence of record. Lectrosonics, IPR2018-01129 at 61. Appeal 2019-005704 Application 15/695,412 14 Appeal Br. 20 (footnote omitted). These arguments likewise fail to show entitlement to a presumption of nexus. The arguments are vague and conclusory and do not even address the coextensiveness requirement. Appellant submitted at least seven “Gilman Declarations.” See Appeal Br. Evidence App. Appellant’s general citation to the declarations in the aggregate is grossly inadequate. And we have reviewed the specifically cited paragraph 5 of the “10/7/2016 Gilman Decl.” but it does not support an entitlement to a presumption of nexus. It states in full: 5. This product, in use, simulates an opposing player moving across the field to give tacklers a moving target, and it is intended to promote taking the tackler’s head out of tackling to make shoulder tackling a habit to prevent collisions to the head of the tackling player. This is specifically accomplished by teaching a tackler to “shoot the arms” with the head, eyes and chin up. Leg drive and upper body leverage is needed to roll it over. This product is currently available in five sizes, having 60- inch, 52-inch, 48-inch, 45-inch, and 42-inch outer diameters, and weighing 27, 19, 16, 13 and 11 pounds, respectively. The inner diameters range from 28 inches for the 60 inch ring and 24 inches for the 52 inch ring to 20 inches for the 48, 45 and 42 inch rings. All of the products are twelve inches in width. The 45-inch and 42-inch roll tackle™ rings are suited for the needs of younger football players because the overall height is lower, and the central hole is located where a youngster’s waist or hips are located. The rings are all filled with soft polyether foam and provide a cushion when a player lands on top of it to prevent injury. The foam is covered with a layer of vinyl coated polyester panels that are stitched together to provide a uniform surface. The roll tackle™ ring products create good habits and sound tackling techniques. Oct. 7, 2016, Gilman Decl. ¶5. This testimony refers to several Gilman products but fails to show how any of them allegedly (1) embodies the Appeal 2019-005704 Application 15/695,412 15 claimed features, and (2) is coextensive with them, let alone on a claim by claim basis. Appellant has failed to show nexus between its secondary considerations evidence regarding any particular product(s) and any particular claim(s). Thus, that evidence is not “to be accorded substantial weight in the obviousness analysis.” Henny Penny, 938 F.3d at 1332. The lack of nexus is particularly problematic here where Appellant’s secondary considerations evidence is presented without comparison to the closest prior art of record: Trysaver. For example, Appellant argues that its tackle rings met a long felt need as evidenced by declarations and letters from American football coaches praising Gilman’s tackle rings. Appeal Br. 21–23. However, Appellant does not present any evidence that these coaches tried Trysaver’s tackle rings or were even aware of them. More broadly, Appellant does not present any evidence that Trysaver’s tackle rings do not satisfy the alleged long felt need Appellant identifies. “[L]ong- felt need is analyzed as of the date of an articulated identified problem and evidence of efforts to solve that problem.” Texas Instruments Inc. v. U.S. Int’l Trade Comm’n, 988 F.2d 1165, 1178 (Fed. Cir. 1993) (emphasis added). Appellant’s secondary considerations arguments fail to account for Trysaver’s prior art efforts to solve the problem. The evidence of record overwhelmingly supports the Examiner’s legal conclusion of obviousness. Trysaver discloses the heart of Appellant’s claimed invention. Trysaver merely fails to teach explicitly the use of polyether foam and the specifically recited ranges for diameter and thickness of the tackle ring. But, as discussed above, the Examiner provides adequate reasons for why a person of ordinary skill in the art would choose polyether Appeal 2019-005704 Application 15/695,412 16 foam and dimensions within the recited ranges. Appeal Br. 4. Appellant does not rebut the Examiner’s findings that support a conclusion of obviousness, and Appellant’s nexus-lacking secondary considerations evidence is insufficient to outweigh the evidence supporting a conclusion of obviousness. Because Appellant fails to apprise us of error, we affirm the rejection of claim 1. We likewise affirm the rejection of claims 2, 7, 9, and 15, which were not separately argued. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 4 Claim 4 recites “wherein the player’s gaze does not drift downward when tackling the ring.” Appeal Br. 32. Appellant argues that “the Trysaver video appears to always show the players’ gazes shifting downward when tackling the ring.” Id. at 12 (reproducing still images taken from Trysaver). The Examiner responds that “simply because a user tilting their head down does not mean their gaze has to be down, as a player[’]s head can be tilted down to prevent neck injury but keeping their gaze up to see where they are running/tackling.” Ans. 6. The Examiner further points out that Trysaver shows tackler’s heads oriented comparable to an image provided on page 6 of the Appeal Brief, depicting Appellant’s claimed method. Id. We agree with the Examiner’s observation and comparison, which Appellant does not dispute. See generally Reply Br. Because Appellant fails to apprise us of error, we affirm the rejection of claim 4. Claims 5 and 6 Claim 5 recites “wherein the practicing football player launches off of their right foot to tackle the ring, and wherein the practicing football player’s Appeal 2019-005704 Application 15/695,412 17 head is positioned to the left of the leading edge of the rolling tackling ring and the player’s right shoulder contacts the ring.” Appeal Br. 32. Appellant argues that the tackle sequence from Trysaver relied on by the Examiner shows “the practicing rugby player launches off his left foot, not his right foot.” Id. at 12. The Examiner responds that the player launches off of both feet, and the claim does not preclude that. Ans. 6 (“As the player shown in Trysaver is running, the player pushes off the right foot then the left foot to launch into the target, and therefore, would disclose the claimed right foot launch of claim 5 and left foot launch of claim 6.”). We agree with the Examiner’s finding and implied construction, which Appellant does not dispute. See generally Reply Br. Because Appellant fails to apprise us of error, we affirm the rejection of claim 5. We likewise affirm the rejection of claim 6, which was not separately argued. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 8 Claim 8 recites, inter alia, “wherein the practicing football player tackles the oncoming ring at a height that is their waist level.” Appeal Br. 33. Appellant argues: “Trysaver explicitly teaches tackling an opponent at knee or calf level, and not waist level.” Appeal Br. 14. However, this argument is unpersuasive for reasons already discussed above. Claim 22 Claim 22 recites “wherein the football player tackles the ring while running at full speed.” Appeal Br. 37. Appellant argues: “The players in the Trysaver video appear to be given very little running time before tackling the ring. This would not be enough time to get up to full speed, such as when pursuing an opposing wide receiver down the field.” Id. at 17. Appeal 2019-005704 Application 15/695,412 18 The Examiner responds that Appellant is speculating. Indeed, in some of the tackling scenes, the tackler enters the video already running. See, e.g., Trysaver at 58–60 sec. Appellant does not reply to the Examiner’s response in this regard. See generally Reply Br. Thus, Appellant’s argument that there is insufficient time to get up to full speed does not apprise us of error in the Examiner’s finding that Trysaver discloses tackling the ring while running at full speed. Accordingly, we affirm the rejection of claim 22. Rejection 3 The Examiner determined that claims 11–14 and 21 would have been obvious over Trysaver, Wynn, and New England Foam. Non-Final Act. 9. Appellant does not present any additional arguments not already considered above that are relevant to this rejection. Because Appellant fails to apprise us of error, we affirm the rejection of claims 11–14 and 21. Rejection 4 The Examiner determined that claim 20 would have been obvious over Trysaver and Goal Line Tackling Drill. Non-Final Act. 15. Appellant does not present any additional arguments not already considered above that are relevant to this rejection. Because Appellant fails to apprise us of error, we affirm the rejection of claim 20. Rejection 5 The Examiner determined that claims 18 and 19 would have been obvious over Trysaver, Goal Line Tackling Drill, and Wide Receiver Blocking Drills. Non-Final Act. 16. Appellant argues that a person of ordinary skill in the art, which Appellant identifies “as a rugby coach,” would not have modified Trysaver (“a rugby video”) in view of “drills that are specific to the play of football.” Appeal Br. 16. Appellant’s argument is Appeal 2019-005704 Application 15/695,412 19 erroneously premised on Trysaver being limited to rugby only. Yet Trysaver is clearly reasonably pertinent also to American football, as both sports involve tackling a ball carrier. And, as the Examiner responds, “the references show various types of football drills involving different players on a team are known.” Ans. 7. “[A]s the claims are just a variant of drills, the claimed drills would be obvious variants of drills, and therefore would have been obvious to one of ordinary skill.” Id. We agree with the Examiner, and Appellant does respond further in reply. See generally Reply Br. Because Appellant fails to apprise us of error, we affirm the rejection of claims 18 and 19. Appeal 2019-005704 Application 15/695,412 20 SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 22 112(b) Indefiniteness 22 1, 2, 4–9, 15, 22 103 Trysaver 1, 2, 4–9, 15, 22 11–14, 21 103 Trysaver, Wynn, New England Foam 11–14, 21 20 103 Trysaver, Goal Line Tackling Drill 20 18, 19 103 Trysaver, Goal Line Tackling Drill, Wide Receiver Blocking Drills 18, 19 Overall Outcome 1, 2, 4–9, 11–15, 18– 22 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 Copy with citationCopy as parenthetical citation