Frances ALTIERI

Patent Trials and Appeals Board

Mar 9, 2022

2021001970 (P.T.A.B. Mar. 9, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 16/179,097 11/02/2018 Frances BARBARO ALTIERI 71457.0031 1464 13155 7590 03/09/2022 Edwards Neils LLC 380 Maple Street #8126 Gallatin, TN 37066 EXAMINER TOKARCZYK, CHRISTOPHER B ART UNIT PAPER NUMBER 3622 NOTIFICATION DATE DELIVERY MODE 03/09/2022 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ipgeneral@edwardsneils.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANCES BARBARO ALTIERI Appeal 2021-001970 Application 16/179,097 Technology Center 3600 Before ERIC B. CHEN, MICHAEL J. STRAUSS, and NABEEL U. KHAN, Administrative Patent Judges. KHAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-19. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Ms. Frances Barbaro. Appeal Br. 2. Appeal 2021-001970 Application 16/179,097 2 CLAIMED SUBJECT MATTER Appellant describes the invention as follows: An electronic system accesses a game application over a computerized network, and allows a user to play individually without personal interaction with any other user within a multiplayer environment. The user is presented with a map or three-dimensional virtual rendering of the user’s real-life current location in a geographic area on the display, shown as a virtual location, and dynamic data on the real-life geographic area is integrated into the display to dynamically update the map or three-dimensional rendering of the corresponding virtual location in the geographic area, thereby dynamically updating the virtual rendering of the user's current location in the real-life geographic area in real-time. Benefits are initiated to the user based on content to which the user is exposed during game play as the user dynamically navigates the map or three-dimensional virtual rendering of the real-life geographic area shown on the display in real-time, during the game application. Abstract. Claim 1, reproduced below with annotations indicating the disputed limitations, illustrates the claimed subject matter: 1. An electronic system, comprising: a primary electronic device configured to access a game application over a computerized network, said primary electronic device configured to initiate said game application in response to a user request to play said game application which is a single player or multiplayer game application; a display provided with said electronic device, wherein said user is presented with a map or three-dimensional virtual rendering created by said processor, of the user’s real-life current location in a geographic area on said display, said map or three- dimensional virtual rendering which shows said user’s current location as a virtual location in said geographic area; a computer memory device configured to communicate with the primary electronic device, said memory device which Appeal 2021-001970 Application 16/179,097 3 contains data on at least said map or said current virtual location of said geographic area; wherein dynamic data on said real-life geographic area is integrated into said display from said computerized network accessed by said electronic device, using said processor, to dynamically update said map or three-dimensional rendering of said corresponding virtual location in said geographic area, and dynamically update said virtual rendering of said user’s current location in said real-life geographic area in real-time on said display; and wherein benefits are initiated to said user, using said processor, based on content to which said user is exposed during game play as said user dynamically navigates said map or three- dimensional virtual rendering of said real-life geographic area shown on said display of said electronic device, in real-time, during said game application. Appeal Br. 31 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Ellis US 9,047,609 B2 June 2, 2015 Pisanich WO 02/062436 A2 Aug. 15, 2002 REJECTIONS2 1. Claims 1-19 stand rejected under 35 U.S.C. § 112 as failing to comply with the written description requirement. Final Act. 4-5. 2 The Examiner denies the Appellant’s claim for priority to prior-filed Application Nos. 13/875,908 and 10/272,408 because the Examiner finds the prior filed applications do not sufficiently disclose the claimed invention of the current application. Final Act. 2-3. Appellant disputes the Examiner’s determination. See Appeal Br. 15-21. However, both of the applied Ellis and Pisanich references predate Appellant’s asserted earliest priority date of October 16, 2002. “Thus, the dispute [is] purely hypothetical and call[s] for an impermissible advisory opinion.” GAF Building Materials Corp. v. Elk Appeal 2021-001970 Application 16/179,097 4 2. Claims 1-19 stand rejected under 35 U.S.C. § 103 as unpatentable over Ellis and Pisanich. Final Act. 6-14. OPINION WRITTEN DESCRIPTION Claim 1 recites the following limitation: “dynamically update said virtual rendering of said user’s current location in said real-life geographic area in real-time on said display.” The Examiner finds Although the specification discloses at page 3 that “The player may be presented with a display of their virtual location as a 3-D virtual rendition, by a web-cam picture, by a map display (which may be provided by a sponsor) or some other visual rendering which indicates to the player the player’s current location within a geography zone,” the specification and the disclosures of the ʼ908 and ʼ408 applications do not specify updating this information or doing so dynamically in real-time. Final Act. 4. The Examiner further finds that to the extent the claims are intended to be implemented by a computer, the specification lacks details of the algorithm (steps or flowcharts) that perform the claimed function in sufficient detail. Final Act. 4 (citing MPEP § 2161.01(I)). Appellant argues that the Specification inherently discloses the features (i.e. algorithm or steps) that the Examiner finds missing. Appeal Br. 21. Appellant argues that the Specification discloses a computer, PDA or cellular phone that have access to networks and web browsers. Appeal Corp., 90 F.3d 479, 482 (Fed. Cir. 1996). The Board only considers matters affecting the merits of the invention, i.e., rejections of claims. See 37 C.F.R. § 41.31(c) (2011). We, therefore, do not reach the merits of Appellant’s arguments regarding whether the Examiner erred in denying the Appellant’s claim for priority to prior-filed applications. Appeal 2021-001970 Application 16/179,097 5 Br. 21 (citing Spec. 4:17-21, 5:20-23). Additionally, Appellant argues the Specification provides a description of dynamically updating the virtual rendering of the user’s current location in the real-life geographic area in real-time by disclosing the following: “content may be in the form of web pages, including dynamic content, which is constantly being updated through the use of, scripts, Java applets, ActiveX objects, or other similar mechanisms.” Appeal Br. 21, emphasis omitted (citing Spec. 6:27-35). Appellant argues that these mechanisms were well known. Appeal Br. 21. Appellant also relies on Figures 1-5 of the Specification as disclosing the computers, networks, and flowcharts to achieve the features of the claimed invention. Appeal Br. 22. Appellant argues that video games have been omnipresent for decades and thus “it would be clear to one of ordinary skill of video gaming that the computers contain processors which contain algorithms which would perform the ‘dynamic[ally] updating’ of the ‘virtual rendering of said user’s current location in said real-life geographic area in real-time on said display.’” Appeal Br. 22. Appellant argues that the operation of computers and processors was well known and that they are responsible for the operation of the video game and that therefore it is clear that Appellant had possession of the invention at the time of filing. We are unpersuaded by Appellant’s arguments. The written description requirement is satisfied where the disclosure “reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc). The written Appeal 2021-001970 Application 16/179,097 6 description requirement is not met if the specification merely describes a “desired result.” Id. at 1349. Here, the portions of the Specification that Appellant identifies include flow charts in figures 3 and 5 and a description that the websites that the player is exposed to when a game event re-directs the player to an external company website may include “dynamic content, which is constantly being updated through the use of, scripts, Java applets, ActiveX objects, or other similar mechanisms.” Spec. 6. The flowcharts in Figures 3 and 5 of the Specification, however, do not describe how the virtual rendering of the user’s current location in said real-life geographic area in real-time is updated dynamically. Figure 3, for example, simply states that a game event redirects the display to an external company website where the player is presented with a buying opportunity and that the player is then redirected back from the external website to the game. Similarly, Figure 5 discloses that the user accesses a virtual reality platform (step 160), the user performs actions in the game (step 164) the content source is redirected to a secondary electronic device (step 166), the user is exposed to business related content (step 168) and then the content is redirected back to the primary electronic device (step 170). These figures provide little to no detail of dynamically updating a virtual rendering of the user’s current location in a real-life geographic area in real-time as the claim requires. The description of “scripts, Java applets, ActiveX objects, or other similar mechanisms” relates to the external webpages that the user visits. Spec. 6:26-31. This description also does not provide the details of how the virtual rendering of the user’s current location in a real-life geographic area are dynamically updated in real-time. Appeal 2021-001970 Application 16/179,097 7 Appellant argues that video games are omnipresent and that one of ordinary skill would have known that computers contain processors which contain algorithms which would perform the claimed limitations. Appeal Br. 22. We determine, however, that without sufficient details of how the processor would implement or perform these steps the description is insufficient to show that the Appellant had possession of the claimed invention. Accordingly, we sustain the Examiners’ rejection of claims 1-19 under 35 U.S.C. § 112. OBVIOUSNESS OVER ELLIS AND PISANICH Appellant argues that Ellis and Pisanich do not disclose or suggests “dynamically update said virtual rendering of said user’s current location in said real-life geographic area in real-time on said display.” Appellant acknowledges that the Examiner does not rely entirely on Ellis for teaching this limitation but argues that Pisanich does not make up for the deficiencies of Ellis. Appeal Br. 27. Specifically, Appellant argues that although Pisanich discloses feeding real-world external data with in a game, “the fact that this data is updated periodically, means that it is not ‘dynamically update[ing] said virtual rendering of said user’s current location in said real- life geographic area in real-time’ on said display.” Appeal Br. 28. Appellant further argues that Pisanich states that it ‘stores real-time data’ that can be used in the game, but does not state that the game is performed in real- time with real-life data. Rather, Pisanich discloses that real- time data is stored and then retrieved and used in the game at a later date. It is not used in real-life and real-time as with the present invention. Reply Br. 7. Appeal 2021-001970 Application 16/179,097 8 We are unpersuaded by Appellant’s argument. The Examiner finds that Pisanich teaches dynamically updating said virtual rendering of said user’s current location in said real-life geographic area in real-time. Final Act. 9 (citing Pisanich 6-7); Ans. 12 (citing Pisanich 6-7). Pisanich discloses that “a game data server 108 continually gather ‘real time’ data form traffic 100 and a weather 104 data provider systems.” Pisanich further discloses that the “data providers 100, 104 . . . make it [i.e the gathered data] available in real-time (as quickly as it is processed and available) in a known format and structure.” Pisanich 5. Pisanich states that “real-time is considered once an hour, or as often as necessary to reflect the perceptible rate of change in the real world.” Pisanich 6. This includes updating traffic data every three minutes. Pisanich 6. Pisanich further states that its game requests data based on a current location and time of a player gaming unit. . . . The frequency of the game’s data requests preferably conforms to the frequency of updates of the data in the databases maintained by the providers 100, 104. This allows the game 112 to provide a real time representation of the world and the vehicles in the world to the players at the fastest rate possible. Pisanich 6-7. As can be seen, Pisanich explicitly teaches that it provides updates in real time. Appellant further argues that one of ordinary skill would not have combined Ellis, which relates to inserting advertising into a video game, with Pisanich, which disclose a flight simulator that insert real traffic and weather data into the game without impermissible hindsight. Appeal Br. 28. Furthermore, Appellant argues that “inserting real-world information about weather and traffic into a virtual world . . . where the user is not tied to the real-world . . . would mean that the Ellis reference would be changed materially and not operate as disclosed.” Appeal Br. 29; Reply Br. 8. Appeal 2021-001970 Application 16/179,097 9 We are unpersuaded. The Examiner articulates a sufficiently rational reason to combine the references, stating that the incorporation of real-time data, such as the weather, traffic, and location information taught by Pisanich into a game such as Ellis, would “provide[s] a player with excitement of the inherent unpredictability of the real world.” Final Act. 9- 10 (quoting Pisanich 1-2). Ellis discloses that its games can include baseball games and road-racing type games. Ellis, 1:43-46. We agree with the Examiner that dynamically updating the environment of such games with real-world or real-time information would provide the user with excitement and would provide sufficient motivation to combine the teachings of the references. Appellant argues claims 1, 5, and 7 as a group and relies on the same arguments for the pending dependent claims. See Appeal Br. 25, 30. We, therefore, sustain the Examiner’s rejection of claim 1-19 under 35 U.S.C. § 103. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-19 112 Written Description 1-19 1-19 103 Ellis, Pisanich 1-19 Overall Outcome 1-19 Appeal 2021-001970 Application 16/179,097 10 TIME PERIOD FOR RESPONSE 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2019). AFFIRMED