Appeal No. 2000-0852 Page 8
Application No. 09/061,314
target is not “coupled to” the support so it can accept swing impacts “without separating
from the target support,” as is required by the three independent claims.
Liao discloses a batting practice device whose objectives have much in common
with the appellant’s invention, however, the target support structure is quite different. The
target is coupled to the support, but the base of the support is flat and the impact of the bat
striking the ball is absorbed by a flexing mechanism on the upper end of the support, rather
than by pivotal movement of the support, as is the case in the appellant’s invention. It is the
examiner’s position that one of ordinary skill in the art would have found it obvious to
modify Griffin by replacing the removable ball with a ball fixed to the upper end of the
support “so as not [to] have to chase batted balls” (Answer, page 4). However, it is basic
to the Griffin invention to bat the ball off of the tee in order to provide an element of realism
to the game. To modify the Griffin device by replacing the free ball with one fixed to the top
of the target support would destroy the Griffin invention by causing the device not to be
operable for the intended purpose. This, in our view, would operate as a disincentive to
the artisan to make the modification proposed by the examiner.
The combined teachings of Griffin and Liao thus fail to establish a prima facie case
of obviousness with regard to the subject matter recited in independent claims 1, 9 and 15,
and we therefore will not sustain the rejection of these claims or, it follows, of claims 11-13
and 16, which depend therefrom.
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