Appeal No. 2004-1282
Application No. 10/037,668
O'Brien meets the second test of analogous art inasmuch as
O'Brien is reasonably pertinent to the problem addressed by
Rappaport, Brown and appellants. In re Wood, 599 F.2d 1032,
1036, 202 USPQ 171, 174 (CCPA 1979). In particular, O'Brien,
like appellants, Rappaport and Brown, is concerned with an
individual activating the propulsion of a material from a device
at a specific time desired by the individual. Also, while
appellants maintain that the present invention "pertains to
apparatus for pitching baseballs," and that "[t]he O'Brien patent
is not applicable as prior art because the O'Brien patent relates
to painting apparatus" (page 9 of Brief, second paragraph), the
examiner properly responds with the following:
With regards to Appellant's [sic, Appellants']
remarks that O'Brien and Rappaport et al patents are
not related, it is noted that the independent claims as
rejected over Rappaport et al and O'Brien do not
require for the member to be a baseball bat, the
element to be a ball or the propulsion mechanism to be
a pitching machine used in baseball. As a matter of
fact with the exception of claims 19 and 21, the
remainder of the pending claims do not require that the
invention be used in a baseball environment, nor is
there any suggestion in the claims that the member is a
bat and the element is a ball. The use of switches to
actuate a signal between a transmitter and a receiver
is well known and used in combination with many
propulsion mechanisms and members. Therefore, there is
nothing unobvious about combining references to show
that the claimed control assembly is well known and it
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