Ex Parte Angelopoulos

Patent Trials and Appeals Board

Apr 30, 2013

10266795 - (D) (P.T.A.B. Apr. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte ATHANASIOS ANGELOPOULOS
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Appeal 2011-002241
Application 10/266,795
Technology Center 3700
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Before MICHAEL C. ASTORINO, BENJAMIN D. M. WOOD, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 29-36, 39-42, 46-48, 51-55, 57-61, and 68-71
under 35 U.S.C. § 103(a) as unpatentable over NBA 2K1 Game Manual of
Sega Dreamcast1 (hereinafter NBA 2K1), NFL 2K1 GameFaqs on Sega
Dreamcast2 (hereinafter NFL 2K1), and NES Tecmo Super Bowl3
(hereinafter Tecmo Super Bowl).4 Claims 1-28, 50, 56, and 62-67 are
canceled and claims 37, 38, 43-45, and 49 are withdrawn. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
Claimed Subject Matter
Claims 29, 51, and 68 are the independent claims on appeal. Claim
29, reproduced below, with emphasis added, is illustrative of the subject
matter on appeal.
29. A game medium configured to provide a sports video game
in conjunction with a video game machine, the sports video
game including video game rules and video game character
parameters, the video game character parameters including
video game character performance parameters associated with
individual video game characters, the game medium being
configured to cause the video game machine to perform a
method comprising:
loading video game data stored by the game medium into
a random access memory of the video game machine for

1 Sega Sports, © 2001
2 Cherone, Version 3.2, http://www.gamefaqs.com/console/dreamcast/file
/914206/10283 (2 of 44)3/28/20096:28:21 AM
3 Software and Documentation © 1991, Nintendo Entertainment System
4 The Amended Brief of Appellant, mailed June 23, 2011, at page 2
indicates that this appeal is related to Appeal 2011-011301 for Application
12/547,359.
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playing the video game, the video game data including the
video game rules and a particular video game character
performance parameter associated with a particular individual
video game character associated with a particular real-life
sports athlete, wherein the particular video game performance
parameter is based at least in part on a real-life performance of
the particular real-life sports athlete playing in one or more real-
life sporting events, the particular video game character
performance parameter affecting the manner in which the
particular individual video game character performs in the
sports video game;
during a single sports season, receiving a series of
updated video game character performance parameters from a
data server via a network including the Internet, wherein each
of the updated video game character performance parameters
in the series is based at least in part on one or more different
real-life performances of the particular real-life sports athlete
in one or more sporting events performed during the single
sports season;
updating the sports video game with each of the updated
video game character performance parameters received,
wherein each update changes the manner in which the
particular individual video game character performs in the
sports video game such that the particular individual video
game character more closely simulates real-life performance
attributes of the particular real-life athlete in the sports video
game; and
enabling a user to control the particular individual video
game character in the sports video game using a video game
controller connected to the video game machine.

OPINION
The Examiner finds, at pages 4-7 of the Answer, that NBA 2K1
discloses most of the claimed features of independent claims 29, 51, and 68.
Independent claims 29 and 68 call for updating video game character
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performance parameters, wherein each update changes the manner in which
the particular individual video game character performs in the sports video
game.5 Similarly, claim 51 calls for enabling a “video game machine to (i)
receive the plurality of updated video game performance parameters . . . and
(ii) change the sports video game play based on changes in the updated
video game performance parameters.” Regarding these limitations, the
Examiner finds that:
(1) “NBA[]2K1 . . . explicitly discloses updating current rosters to the
NBA game, where the updating of rosters are interpreted as a series of
updated video game character performance parameters because each player
in the video game has a set of attributes as related to playing the game of
basketball” (Ans. 5, citing p. 25);
(2) “NFL[]2K1 . . . discloses connecting to the net to get the new
update player rosters with new and improved stats, because each player in
the video game has a set of attributes as related to playing the game of
football, stats are interpreted as players attributes or performance
parameters)” (Ans. 7); and
(3) “Tecmo Super Bowl explicitly disclose updated video game
character performance parameters during a single sports season (see pg. 7,
which discloses each team plays one game every week during the season and
pg. 9-11, discloses a player’s data that includes player's condition, record,
and abilities)” (Ans. 8).

5 Examples of “video game character performance parameters” include
batting average for a baseball game, completion percentage for a football
game, and field goal percentage, free throw percentage, and blocks per game
for a basketball game. Spec. paras. [29], [38].
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The Appellant persuasively contends that each of these findings do
not correspond to changing the play of either the video game characters or
the sports game due to updating video game character performance
parameters. First, the Appellant correctly contends that a change in a roster
does not correspond to a change in video game performance parameters
because a roster is a list of video game characters on a team and has nothing
to do with how the video game characters perform. App. Br. 11-12.
However, the Examiner nonetheless finds that updating a roster corresponds
to updating video game character performance parameters. Ans. 19-20.
This finding is incorrect. Put simply, “there is no evidence of the alleged
fact that merely because video game characters have attributes, as a result,
the ‘roster’ update in NBA2Kl changes those attributes.” App. Br. 12.
Moreover, the Examiner’s application of a roster change
corresponding to a video game character performance parameter logically
fails due to the rule of claim differentiation. App. Br. 14-15. Claim 36,
which depends from independent claim 29, recites “receiving a change in a
video game team parameter from a data server via the network, wherein the
video game team parameter corresponds to a real-life trade of a real-life
athlete between two real-life teams during a single sports season.” App. Br.,
Claims Appendix (emphasis added). The “video game team parameter”
refers to a change in members of a team, i.e., a roster, which is understood as
a “video game team parameter” rather than a “video game character
performance parameter.” App. Br. 14-15. Compare Ans. 5, 10 (the
Examiner finds that a roster update would correspond to a “video game
character performance parameter” as well as a “video game team
parameter.”).
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Second, the Appellant correctly contends that the disclosure of NFL
2K1 concerning stats does not correspond to changing the play of either the
video game characters or the sports game due to updating video game
character performance parameters. See App. Br. 15-16. NFL 2K1 states
“[f]rom this menu, you can download the updated roster for your team. This
is useful if you do not want to buy NFL 2K2 and you would like to get the
new updated rosters with new and improved stats.” NFL 2K1 p. 9. As
discussed above, updated rosters do not correspond to video game character
performance parameters. Also, the Appellant contends that NFL 2K1
“provides no explanation whatsoever about how the ‘stats’ are to be used in
the video game.” App. Br. 16. In response, the Examiner determines that a
person of ordinary skill in the art would recognize that “stats” from NFL
2K1, like the abilities disclosed in Tecmo Super Bowl discussed infra, are
similar to a video game characters’ abilities or attributes. Ans. 22.
However, there is inadequate evidence that the incorporation of updated stats
changes video game character performance parameters or the play of either
the video game characters or the sports game. See App. Br. 16.
Third, the Appellant contends that Tecmo Super Bowl does not
disclose video game character performance parameters that are updated and
received during the single game sports season. See App. Br. 17. Tecmo
Super Bowl includes abilities or attributes, such as “accuracy of passing”
which is a type of video game character performance parameter. See Tecmo
Super Bowl p. 9. However, there is no evidence that a video game
character’s abilities or attributes change. See App. Br. 21. Consequently,
there is no evidence that a video game character performance parameter in
Tecmo Super Bowl changes. Additionally, as the Appellant points out,
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Tecmo Super Bowl at pages 7 and 9-11 does not disclose that the records
and stats kept during the course of a season affect a video game character
performance parameter. Id. See Ans. 23 (the “Examiner agrees that Tecmo
Super Bowl fails to explicitly disclose [sic that its] records affect the manner
in which individual characters perform in the video game.”).
The Examiner also finds that Tecmo Super Bowl at page 9 discloses
the use of recording “player conditions” which are described in five levels:
Excellent: top condition; Good: good condition; Average: average condition;
Bad: in a slump; and Injured: sidelined with an injury. See Ans. 22. The
Examiner determines that the combined teachings of Tecmo Super Bowl’s
disclosure of player’s conditions, player’s abilities or attributes, and a 17-
week season results in a video game character’s play that changes or updates
based on a player’s physical condition during a 17-week season. Ans. 22-
23. The Examiner also determines, at page 23 of the Answer, that:
a person of ordinary skill in the art at the time of the invention
would recognize the records of Tecmo Super Bowl corresponds
to the performance and use of the athletes which affect their
physical condition and abilities of Tecmo Super Bowl in order
to provide a video game that stimulates real-life tendencies such
as injuries, physical fitness, and fatigue. In addition, in Tecmo
Super Bowl when a player performs what are considerate [sic]
to be excellent records, the corresponding player may be in an
"excellent" condition.
The Appellant correctly contends that “[t]here is no concrete evidence of
record to show that this allegation of recognition in-fact existed at the time
of the invention.” Reply Br. 8. Indeed, the Examiner’s determinations are
speculative. Initially, it is not clear that changes in a game character’s
physical condition would necessarily affect the character’s performance.
For example, the change in physical condition may only cause an increase of
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the chance of injury, and thus being sidelined for a game. Additionally, the
Specification suggests that injuries, like roster changes due to athletes being
traded from team to team, are different than athletes’ performances, and
similarly a video game character performance parameter. Spec. para. [07]
(The Specification states that “Athletes’ performances change over the
course of a season, or even a day. Additionally, athletes may be traded from
team to team, or become injured.”).
Thus, for the foregoing reasons, the Examiner’s rejection lacks
rational underpinning. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
(“[R]ejections on obviousness grounds [require] some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness”) (cited with approval in KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 418 (2007)). The Examiner has not adequately explained how
modifying NBA 2K1 with the teachings of NFL 2K1 and Tecmo Super
Bowl would result in a game medium or method satisfying the limitations of
claims 29, 51, and 68 with respect to updating a video game to change the
manner in which video game characters perform in the video game based on
updated video game character performance parameters. Accordingly, the
Examiner’s rejection of claims 29-36, 39-42, 46-48, 51-55, 57-61, and 68-71
under 35 U.S.C. § 103(a) as unpatentable over NBA2K1, NFL2K1, and
Tecmo Super Bowl is not sustained.

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DECISION
We REVERSE the rejection of claims 29-36, 39-42, 46-48, 51-55, 57-
61, and 68-71.

REVERSED

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