Ex Parte Walker et al

Patent Trial and Appeal Board

Jul 25, 2013

10417436 (P.T.A.B. Jul. 25, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAY S. WALKER, JAMES A. JORASCH, DAVID F. ZUCKER,
JOSE A. SUAREZ, STEPHEN C. TULLEY, GEOFFREY M. GELMAN,
and STEVEN M. SANTISI
____________

Appeal 2010-007002
Application 10/417,436
Technology Center 3700
____________

Before PHILLIP J. KAUFFMAN, BARRY L. GROSSMAN, and
BART A. GERSTENBLITH, Administrative Patent Judges.

GROSSMAN, Administrative Patent Judge.

DECISION ON APPEAL
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Application 10/417,436

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STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 5-8, 28-31, and 43. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We REVERSE the decision of the Examiner.
CLAIMED SUBJECT MATTER
The claimed subject matter relates generally to gaming devices. More
specifically, the claimed subject matter relates to methods and apparatus for
adjusting play parameters, such as rate of play, of gaming devices. Spec., p.
1, ll. 14-16. Claims 5 and 43, each directed to a method, and claim 28,
directed to a device, are independent claims. Claim 5 is illustrative of the
subject matter on appeal, and recites:
5. A method comprising:
monitoring play at a gaming device, wherein
monitoring play includes:
measuring a number of times a button of the
gaming device has been pressed after a first spin
has been initiated and before a second spin has
been initiated, the first and second spins being
consecutive; and
adjusting a game play parameter based at
least in part on the number of button presses
measured, wherein the adjusted game play
parameter is related to a maximum potential rate of
play.

REFERENCES
The Examiner relied upon the following prior art references:

Beaulieu US 6,695,699 B2 Feb. 24, 2004
Lucchesi US 6,739,973 B1 May 25, 2004
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REJECTIONS
The following rejections are before us on review:
1. Claims 5, 6, 8, 28, 29, 31, and 43 rejected under 35 U.S.C. § 103(a)
as unpatentable over Lucchesi; and
2. Claims 7 and 30 rejected under 35 U.S.C. § 103(a) as unpatentable
over Lucchesi and Beaulieu.
ANALYSIS
Claim 5
The Examiner found that Lucchesi discloses measuring the number of
times a button is pressed during a predetermined period of time and
adjusting a game play parameter based on this measurement. Ans. 4 (citing
col. 7, ll. 8-21). The Examiner also found that “Lucchesi does not
specifically disclose measuring a number of times a button of the gaming
device has been pressed after a first spin has been initiated and before a
second spin has been initiated, the first and second spins being consecutive,”
as recited for in claim 5. Ans. 4. The Examiner found, however, that
“Lucchesi does not preclude that the time period is the period of time in
between consecutive spins.” Id. at 5. The Examiner did not expressly state
any conclusion, determination, or rationale as to how or why these findings
would have made the claimed invention obvious to a person of ordinary skill
in the relevant technology.
Appellants argue that “Lucchesi discloses measuring a number of
‘activations’ of a spin, e.g., across multiple rounds of a game, and does not
disclose teach, or suggest measuring any presses of a button . . . between
activations of consecutive spins.” App. Br. 11, 22; Reply Br. 2. Appellants
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assert that “by definition, an activation of a spin cannot occur ‘after a first
spin has been initiated and before a second spin has been initiated, the first
and second spin being consecutive,’ as Claim 5 recites.” Id. at 22.
Appellants also assert that the finding that Lucchesi does not preclude the
claimed method “is immaterial,” since “Lucchesi does not disclose, teach or
suggest this functionality.” Id.
Lucchesi discloses a gaming device that monitors and temporarily
stores player activity, specifically the player's wagers or bets. Col. 2, ll. 4-5.
When a predetermined or random number of the same bets or wagers are
made, the gaming device changes or generates at least one stimulus provided
to the player. Id. at 6-8. Lucchesi also discloses that the gaming device
could be adapted to monitor and temporarily store a predetermined period of
time a player operates the gaming device and could change or generate at
least one player stimulus based upon that period of time. Id. at 12-15.
Lucchesi discloses that the monitored player activity is based on the
“number of activations, period of activation, or number of repeated
functions.” Col. 5, ll. 29-31; see also diamond 308 in Fig. 3. In Lucchesi, a
“processor 38 once triggered by the predetermined or random number of
activations inputted into gaming device 10” could change one or more player
stimuli. Col. 6, ll 43-47.
The Specification states that gaming devices may be “activated by a
player pressing a spin button (including buttons labeled ‘bet’, ‘wager’,
‘deal’, ‘start’, ‘go’, ‘hit’, and/or the like), pulling a handle, and/or any other
method to initiate the generation of an outcome.” Spec. p. 4, ll. 27-30. The
Specification also states that the “terms ‘handle pull’ and ‘spin’ shall be
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synonymous and may refer to an action that initiates a single play at a
gaming device.” Id. at p. 5, ll. 6-7.
We agree with Appellants that Lucchesi does not disclose or suggest
monitoring button presses between consecutive activations or spins of a
game. Claim 5 distinguishes between “button presses” and “spins” and
measures button presses, not spins. The game play parameter is adjusted
based on button presses between consecutive spins. Lucchesi may monitor
activations, spins, or time, and adjust player stimuli based on these
parameters, but the Examiner has not pointed to any disclosure in Lucchesi
that states or suggests monitoring button presses between consecutive spins
and adjusting player stimuli based on the number of these button presses, as
called for in claim 5.
The Examiner additionally found that “input devices monitored by
gaming device 10 or via the controller can include, but are not limited to:
cash out button 26, play button 20, bet one button 24, bet max button 5”
[sic], bet per line button 54, and at least one bet amount button 58.” Ans. 4.
However, it is clear from the Lucchesi disclosure that the non-activation
buttons are not counted toward activations. See, Fig. 3 of Lucchesi and col.
5, ll. 20-27 (“If the player has not activated a different input device as
illustrated by diamond 302 or the cash out button as illustrated by diamond
303, the processor increases the counter as shown by block 307.” (Emphasis
added)).
The Examiner also has not stated any reasoning or rationale why any
modification of Lucchesi to meet the limitations in claim 5 would have been
obvious to a person of ordinary skill in the relevant technology. See In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness
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grounds cannot be sustained by mere conclusory statements; instead, there
must be some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness”).
Accordingly, we cannot sustain the rejection of independent claim 5.
Claims 6-8 depend from claim 5 and include all its limitations. Beaulieu,
applied against claim 7, does not cure the deficiencies in Lucchesi. Thus,
the rejection of claims 6-8 falls with claim 5.
Claim 28
Claim 28 calls for a button to facilitate a wagering game and to also
generate a signal each time the button is pressed. The number of times a
signal is generated “during a round of the wagering game” is counted and a
game play parameter is adjusted based on the number.
Appellants argue that “the Office Action relied on an overly broad
interpretation of the term ‘round.’” App. Br. 11.
The Examiner found that Lucchesi discloses that pressing a button of
the gaming device generates a signal each time the button is pressed. Ans. 5.
The Examiner did not point to a specific passage in Lucchesi that supports
this disclosure and we discern no such disclosure based on our analysis. The
Examiner also found that “a processor coupled to the button is operative to
count a number of times the signal is generated during a round of the
wagering game.” Id. (citing col. 5, l. 66 – col. 6, l. 12). The cited passage
refers to monitoring and counting “the number of activations,” not the
number of times a button is pressed. Additionally, the Examiner found that
Lucchesi discloses that a “round” “comprises multiple activations of the
gaming device.” Id.; see also, Ans. 7 (citing col. 7, l. 60 – col. 8, l. 14). We
find no support for the Examiner’s finding in the cited passages.
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Appellants’ Specification provides no specific meaning for the term
“round.” If the specification does not assign or suggest a particular
definition to a claim term, it is appropriate to consult a general dictionary
definition of the word for guidance in determining the ordinary and
customary meaning of the claim term as viewed by a person of ordinary skill
in the art. Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir.
2010). Appellants provided such a general dictionary definition which is
consistent with the context of the relevant technology and the Specification.
App. Br. 23. Based on this evidence a “round” is synonymous with a game
or a single activation.
We agree with Appellants (App. Br. 23) that Lucchesi fails to
disclose, teach or suggest measuring “‘a number of times the signal is
generated during a round of the wagering game.’”
Accordingly, we cannot sustain the rejection of independent claim 28.
Claims 29-31 depend from claim 28 and include all its limitations.
Beaulieu, applied against claim 30, does not cure the deficiencies in
Lucchesi. Thus, the rejection of claims 29-31 falls with claim 28.
Claim 43
Claim 43 calls for measuring a number of second presses of the button
subsequent to the first press, wherein the second presses do not initiate a
spin; and adjusting a game play parameter based on the number of second
presses. Based on our analyses above concerning claims 5 and 28, we
cannot sustain the rejection of independent claim 43.
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DECISION
Upon consideration of the record as a whole in light of Appellants’
contentions and the preponderance of relevant evidence we REVERSE the
Examiner’s decision rejecting claims 5-8, 28-31, and 43.

REVERSED

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