Ex Parte Sterchi et alDownload PDFPatent Trial and Appeal BoardJul 23, 201311077211 (P.T.A.B. Jul. 23, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte HENRY STERCHI and JEFF MILLER ____________________ Appeal 2011-008186 Application 11/077,211 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, GAY ANN SPAHN, and MICHAEL C. ASTORINO, Administrative Patent Judges. BAHR, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-008186 Application 11/077,211 2 STATEMENT OF THE CASE Henry Sterchi and Jeff Miller (Appellants) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 70-94 and 104-109. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The Claimed Subject Matter Claim 70, reproduced below, is illustrative of the claimed subject matter. 70. In a videogame system including a user-operable controller, a method comprising: allowing the user to create an image using the user- operable controller during execution of a software program; allowing the user to select a portion of a virtual sports venue in which interactive game play of a sports videogame is to be provided; applying the created image onto the selected portion of the sports venue; displaying the sports venue having the applied created image so that the created image contributes to the overall atmosphere in which interactive game play of the sports videogame is provided and so that one or more game characters of the sports videogame are located within the sports venue; and providing interactive game play of the sports videogame within the sports venue in response to input received on the user-operable controller. Evidence The Examiner relied on the following evidence in rejecting the claims on appeal: Breslow Bacso US 4,710,873 US 2002/0124182 A1 Dec. 1, 1987 Sep. 5, 2002 Yamada US 6,970,177 B2 Nov. 29, 2005 Appeal 2011-008186 Application 11/077,211 3 Rejections Appellants request our review of the following rejections: I. Claims 70, 72, 75-79, 81, 83-87, 89, 92-94, and 104-109 under 35 U.S.C. § 103(a) as unpatentable over Breslow; II. Claims 71, 80, and 88 under 35 U.S.C. § 103(a) as unpatentable over Breslow and Bacso; and III. Claims 73, 74, 82, 90, and 91 are rejected under 35 U.S.C. § 103(a) as unpatentable over Breslow and Yamada. OPINION In contesting rejection I, Appellants argue claims 70, 72, 75-79, 81, 83-87, 89, 92-94, and 104-109 together. Thus, we select claim 70 to decide the appeal of this rejection. The issue raised in this appeal is whether Breslow discloses “allowing the user to select a portion of a virtual sports venue in which interactive game play of a sports videogame is to be provided” and “displaying the sports venue having the applied created image . . . so that one or more game characters of the sports videogame are located within the sports venue,” as called for in claim 70. The Examiner found that Breslow’s disclosure of having the player move the assigned car about the parking lot display using the joystick control to try to position the player controlled car in one of the empty parking spaces satisfies the “allowing the user to select . . .” limitation, and that Breslow’s disclosure of displaying the parking lot, the parked (former champion) cars, and movement of the champion cars and the player controlled car, with the player’s image atop the player controlled car, as the player attempts to maneuver the player controlled car into an empty parking Appeal 2011-008186 Application 11/077,211 4 space, satisfies the “displaying the sports venue having the applied created image . . . so that one or more game characters of the sports videogame are located within the sports venue” limitation. Ans. 3-4; see Breslow, col. 4, ll. 37-52. Appellants argue that Breslow’s display of the player’s image atop the car is nothing more than providing an avatar, which is different than allowing a player to select a portion of a virtual sports venue. App. Br. 13. Appellants assert that “claim 70 contemplates a difference between the venue and the player characters in the venue.” Id. Appellants also argue that there is a difference between associating an image with a player character and then allowing the player to move that player character around within the venue, as disclosed by Breslow, and applying an image to a venue directly following the selection of an area to which the image is to be applied and then allowing the player character to move around within the venue. Reply Br. 2. Appellants’ arguments are not convincing. First, claim 70 does not specify that the image become part of the recited “sports venue” distinct from the game characters. Rather, claim 70 recites “applying the created image onto the selected portion of the sports venue” (emphasis added). Further, while claim 70 makes reference both to a “created image” and to “one or more game characters,” claim 70 does not exclude an association between the image and the one or more game characters. Thus, even assuming claim 70 does contemplate a difference between the venue and the player characters in the venue, such a difference, by itself, does not distinguish Breslow’s disclosure of displaying the image atop the player’s assigned car during play of the game. Appeal 2011-008186 Application 11/077,211 5 Further, by controlling the joystick control to move the player controlled car and the player’s image displayed atop the car around the virtual sports venue (e.g., the parking lot) displayed on the game display, as disclosed by Breslow, the player selects a portion of the virtual sports venue in which interactive game play is to be provided. As Breslow’s system updates the display, showing the movement of the player controlled car and the image atop the car, Breslow performs the step of “applying the created image onto the selected portion of the sports venue,” as called for in claim 70. Claim 70 requires neither that the “selected portion” remain fixed nor that the created image appear for the first time on the venue after the user has selected a portion of the virtual sports venue onto which the created image is to be applied. Breslow’s display of the parking lot venue with the player’s image thereon and the player controlled car moving thereon under the control of the player/user as the game progresses satisfies the step of “displaying the sports venue having the applied created image . . . so that one or more game characters of the sports videogame are located within the sports venue.” Appellants argue that in Breslow’s game the user will not necessarily always be able to find an available parking space, and thus there will be situations in which a “selected” spot does not have an image applied thereto. Reply Br. 3. This argument also is not convincing. The user need not position the user assigned car into a parking space to “select” a portion of the sports venue and have a created image applied to the selected portion. Rather, as discussed above and as explained by the Examiner (Ans. 3-4), the user selects a portion of the venue by controlling the joystick to move the car and the image atop the car around the venue (parking lot), and Breslow applies the image to the selected portion by displaying the movement of the Appeal 2011-008186 Application 11/077,211 6 car and image. Thus, Breslow satisfies the limitations of claim 70 regardless of whether the user is able to position the assigned car into a parking space. For the above reasons, Appellants do not apprise us of error in the Examiner’s rejection of claim 70. We thus sustain the rejection of claim 70 and of claims 72, 75-79, 81, 83-87, 89, 92-94, and 104-109, which fall with claim 70, as unpatentable over Breslow. In contesting rejections II and III, Appellants merely argue that the introduction of Bacso and Yamada would not make up for the deficiencies of Breslow asserted against rejection I. App. Br. 16. Having found no such deficiencies in Breslow, for the reasons discussed above, we also sustain the rejection of claims 71, 80, and 88 as unpatentable over Breslow and Bacso, and the rejection of claims 73, 74, 82, 90, and 91 as unpatentable over Breslow and Yamada. DECISION The Examiner’s decision rejecting claims 70-94 and 104-109 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED mls Copy with citationCopy as parenthetical citation