Ex Parte Rackham

Patent Trial and Appeal Board

Nov 9, 2012

10096310 (P.T.A.B. Nov. 9, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte GUY JONATHAN JAMES RACKHAM
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Appeal 2010-000965
Application 10/096,310
Technology Center 2600
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Before CARL W. WHITEHEAD, JR., ERIC S. FRAHM and ANDREW J.
DILLON, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-000965
Application 10/096,310

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STATEMENT OF THE CASE
Appellant is appealing claims 1-18. Appeal Brief 5. We have
jurisdiction under 35 U.S.C. § 6(b) (2012).
We affirm.

Introduction
The invention is used for performances or presentations,
“[m]ore particularly, the invention relates to apparatus and methods
for enhancing a performance or presentation with electronic and/or
mechanical media.” Specification 1.

Illustrative Claim
Claim 1: A tangible computer readable medium having stored
thereon:

a script of a performance comprising one or more threads
of performance activity, at least one thread comprising
computer implementable instructions to control one or more
electronic and/or mechanical media devices involved in the
performance, wherein the script is a narrative of the
performance including a schedule of and interdependencies
between events and activities in the performance;

whereby the script can be stepped through by a control
program that allows adaptation of the performance in response
to an action not normal to the schedule of events in the
performance, wherein the adaptation may include manipulating
the speed, sequence or other timing aspects of the performance.

Appeal 2010-000965
Application 10/096,310

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Rejection on Appeal1
Claims 1-18 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Fischer (U.S. Patent Number 5,790,124; issued August 4,
1998) and Bailey, “Nsync – A Toolkit for Building Interactive Multimedia
Presentations” ACM Multimedia ’98, 257-266, September 1998. Answer 3-
8.

Issue on Appeal
Do Fischer or Bailey, either alone or in combination, disclose “a script
of a … performance activity, at least one thread comprising computer
implementable instructions . . . between events and activities in the
performance” as recited in claim 1 and similarly recited in claim 12?

ANALYSIS
Appellant argues that “Bailey and Fischer teach away from
the proposed combination” thus rendering claims 1-18
nonobvious. Appeal Brief 9. Appellant contends that Fischer
references “a script” twice in the Background section and clearly
indicates that the object of Fischer’s invention is to provide a
system whereas the performer “is not limited to a choreographed
script.” Id. at 10. Therefore, modifying Fischer with Bailey’s
choreographed scripts would be detrimental to Fischer because
Fischer explicitly teaches away from such a combination. Id.

1 Both the 35 U.S.C. §112, first paragraph rejection as well as the 35 U.S.C.
§ 101 rejection have been withdrawn by the Examiner. Answer 2.
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Fischer discloses that it is “desired to have a system which
allows the performer to interact with the screen in manner that
appears seamless to an audience” and “to allow the performer to
control the interaction so that he is not limited to a choreographed
script.” Fischer, column 1, lines 41-46. It is evident that Fischer’s
“script” is limited to the performer’s performance in front of the
audience. However, the claimed “script” of the instant invention
does not have such a limitation as Fischer’s. The Appellant defines
“script” as “a technical narrative of the events and activities that
make[s] up the performance, including interdependencies between
different events and activities.” Specification 4. Therefore, it is
clear that the Appellant’s narrow interpretation of Fischer’s script is
not commensurate with the scope of the claims in light of
Appellant’s Specification.
Appellant discloses that “[t]he script may be organized as
several simultaneous threads wherein each thread is one particular
sequence of events. Exemplary threads are performer dialogues,
musical scores, sound effects, lighting changes, platform motions,
video excerpts and combinations of the foregoing.” Id. While it is
apparent that the claimed “script” can include “performer
dialogues,” it is clear that the Appellant’s “script” is not limited to
dialogues only and, as such, incorporates other elements of a
performance. Further, Appellant does not indicate that the
performer’s dialogues are choreographed; they could as well be
improvised.
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Fischer discloses, for example, wherein “trigger positions or
virtual buttons may be defined in three-dimensions on the stage so
that when a performer enters a particular position on the stage, an
event is triggered” and “real-time generated graphical images of
puppets that are controlled by one or more puppeteers and interact
with the performer” are provided as well as a MIDI (musical
instrument digital interface) to interface with the musical
instruments; a media system for producing visual images; a
graphics system for providing graphics images; and a video system
for producing video images that includes prerecorded video storage
media. Fischer column 1, line 62 to column 2, line 34. Fischer’s
invention incorporates the use of “scripts” as defined by Appellant
because the organization of the music, video, etc. as noted above
are “simultaneous threads” (Specification 4) or “one or more
threads of performance activity” (Claim 1, emphasis added) that
require organization for each performance and are therefore
scripted in order for the performance to be conducted.
Therefore, we do not find Appellant’s arguments to be
persuasive because, while the incorporation of Bailey within the
rejection appears to be redundant, Appellant has not convinced us
that the Examiner has erred for the reasons set forth
above. Consequently, we sustain the Examiner’s rejection of
claims 1 and 12, as well as dependent claims 2-11 and 13-18, not
separately argued.
We note that the Examiner issued a new grounds of rejection in the
Final Office Action mailed September 25, 2008; however, the Examiner did
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not present arguments pertaining to the dependent claims in the Answer;
therefore, Appellant’s arguments in the Reply Brief directed to the
dependent claims are not considered to be timely and are not
considered. See Optivus Tech., Inc. v. Ion Beam Appl’ns. S.A., 469 F.3d
978, 989 (Fed. Cir 2006) (“[A]n issue not raised by an appellant in its
opening brief . . . is waived.”) (citations and quotation marks omitted).

DECISION
The rejection of claims 1-18 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37
C.F.R. § 41.50(f).

AFFIRMED

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