Marty Gilman, Inc.

Patent Trials and Appeals Board

Mar 30, 2021

2020005704 (P.T.A.B. Mar. 30, 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.
15/695,412 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.
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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rejection of claims 16 and 17 was withdrawn.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;
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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
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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”).
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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
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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
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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
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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.”
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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/)).
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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
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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
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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.,
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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.
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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
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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
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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
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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.
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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