2020004814 (P.T.A.B. Feb. 9, 2021)

Michael Kimmet

Patent Trials and Appeals BoardFeb 9, 2021

2020004814 (P.T.A.B. Feb. 9, 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. 15/856,481 12/28/2017 Michael G. Kimmet MGK-2 1126 31027 7590 02/09/2021 STEPHEN G. KIMMET 118 GROSS STREET TIFFIN, OH 44883 EXAMINER SUTTON, ANDREW W ART UNIT PAPER NUMBER 3732 MAIL DATE DELIVERY MODE 02/09/2021 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL G. KIMMET Appeal 2020-004814 Application 15/856,481 Technology Center 3700 ____________ Before MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and KENNETH G. SCHOPFER, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–3 and 5–25, which constitute all the claims pending in this application. Claims 4 and 26 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). 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 Michael G. Kimmet. Appeal Br. 3. Appeal 2020-004814 Application 15/856,481 2 BACKGROUND The Specification discloses that “[t]he present invention relates to identifying a golfer. More particularly, the present invention relates to identifying a golfer wearing a golf jersey.” Spec. 1, ll. 5–6. CLAIMS Claims 1 and 23 are the independent claims on appeal. Claim 1 is illustrative of the appealed claims and recites: 1. A method of identifying a professional golfer while the professional golfer is playing a round of golf, comprising having the professional golfer wear a jersey while playing, the jersey bearing at least one digit on a back of the jersey, thereby identifying the professional golfer on a golf course and providing the professional golfer individual professional financial benefits. Appeal Br. 10. REJECTIONS2 1. The Examiner rejects claims 1–3, 5–9, 11–13, 16–19, and 22–25 under 35 U.S.C. § 103 as unpatentable over Stutzman3 in view of Gooch.4 2. The Examiner rejects claims 14 and 20 under 35 U.S.C. § 103 as unpatentable over Stutzman in view of Gooch and DuChene.5 3. The Examiner rejects claims 10, 15, and 21 under 35 U.S.C. § 103 as unpatentable over Stutzman in view of Gooch and Hubsmith.6 2 Rejections under 35 U.S.C. § 112 have been overcome by an amendment. See Advisory Act. 1 (mailed Mar. 18, 2020). 3 Stutzman, “Georgia wins PGA Junior Golf Championship over California,” available at https://www.pga.com/news/pga/georgia-wins-pga- junior-league-golf-championship-over-california, Sept. 8, 2013. 4 Gooch, US 2014/0189929 A1, pub. July 10, 2014. 5 DuChene et al., US 2013/0276206 A1, pub. Oct. 24, 2013. 6 Hubsmith, US 2012/0047624 A1, pub. Mar. 1, 2012. Appeal 2020-004814 Application 15/856,481 3 DISCUSSION With respect to the rejection over Stutzman in view of Gooch, Appellant groups claims 1–3, 5–9, 11–13, 16–19, and 22–25 together. See Appeal Br. 4–7. We select claim 1 as representative of this group of claims, and claims 2, 3, 5–9, 11–13, 16–19, and 22–25 will stand or fall with claim 1. See 37 C.F.R. 41.37(c)(1)(iv). With respect to claim 1, the Examiner finds that Stutzman teaches a method of identifying a golfer as claimed except that “Stutzman does not teach the jerseys worn on a professional golfer on a golf course who is provided professional financial benefits.” Final Act. 3. The Examiner further relies on Gooch as teaching that jerseys can be worn at all athletic levels, and the Examiner determines it would have been obvious to modify Stutzman to provide jerseys for professional golfers “in order to more easily identify golfers on a professional level.” Id. (citing Gooch ¶ 6). We agree with and adopt the Examiner’s findings and determination with respect to claim 1. See id. at 3; see also Ans. 3–4. We are not persuaded of reversible error by Appellant’s arguments. Appellant first argues that Gooch does not support the rejection because Gooch does not teach golf as a sport in which a jersey can be worn and only teaches jerseys worn in team sports. Appeal Br. 6. We are not persuaded. First, we note that the claim does not require that the golfer is not part of a team. Rather, the claim only requires that the golfer is somehow provided “individual professional financial benefits.” Second, we agree with the Examiner that Stutzman teaches that individual members of a golf team may be provided with jerseys and identified based on those jerseys. Stutzman (photo showing a golf team with individualized jerseys). Appeal 2020-004814 Application 15/856,481 4 Further, we agree with the Examiner that Gooch teaches the use of jerseys for professional athletes. Gooch ¶ 6. Also, as noted by Appellant, Gooch teaches jerseys that may include references to multiple teams to allow a fan “to clearly express loyalty to an individual player rather than to the player’s teams.” Id. ¶ 8. We also agree with the Examiner that one of ordinary skill in the art would recognize that professional golfers are provided individual financial benefits because they are playing golf professionally. And we agree with the Examiner that one of ordinary skill in the art would have found it obvious to provide a jersey to individual golfers in order to make them more easily identifiable, and this determination is supported by the teachings of Gooch, which teaches the use of individualized jerseys representing professional athletes. Appellant also argues that Gooch teaches away from the claimed invention. Appeal Br. 6. A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant. In re Gurley, 27 F.3d 551, 53 (Fed. Cir. 1994). Appellant does not persuade us that this is the case here. Appellant appears to only rely on the fact that Gooch teaches jerseys with indicia related to particular athletic teams. See Appeal Br. 6–7. Yet, Appellant does not explain adequately how this teaches away from the claimed invention. As explained above, the claim does not preclude the golfer from wearing the jersey of a team and only requires that the golfer is provided individual financial benefits. We do not see any portion of Gooch that discourages providing individual financial benefits as required by the claim. We also find that Gooch supports the use Appeal 2020-004814 Application 15/856,481 5 of jerseys that can individually identify players regardless of athletic team, as discussed above. Thus, we disagree that Gooch provides a teaching away as asserted by Appellant. Finally, Appellant alleges that the Examiner has provided no reasoning to support the rejection. Appeal Br. 7. We disagree. The Examiner determines that one of ordinary skill in the art would have found it obvious to combine the references of record to more easily identify golfers on the professional level. See Ans. 4. Based on the foregoing discussion, we are not persuaded of any error in this determination and find that it is adequately supported on the record before us. Accordingly, we sustain the rejection of claim 1. We also sustain the rejection of claims 2, 3, 5–9, 11–13, 16–19, and 22–25, which fall with claim 1. Rejections of claims 10, 14, 15, 20, and 21 With respect to the rejections of the remaining claims, Appellant argues only that the art of record does not cure the deficiencies in the rejection of claim 1. See Appeal Br. 8. Having determined that there is no deficiency in the rejection of claim 1, we also sustain the rejections of claims 10, 14, 15, 20, and 21. CONCLUSION We AFFIRM the rejections of claims 1–3 and 5–25. In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1–3, 5–9, 11– 13, 16–19, 22–25 103 Stutzman, Gooch 1–3, 5–9, 11–13, 16– 19, 22–25 Appeal 2020-004814 Application 15/856,481 6 Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 14, 20 103 Stutzman, Gooch, DuChene 14, 20 10, 15, 21 103 Stutzman, Gooch, Hubsmith 10, 15, 21 Overall Outcome 1–3, 5–25 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)(l)(iv). AFFIRMED