Ex Parte Cole

Patent Trial and Appeal Board

Apr 30, 2018

13737635 (P.T.A.B. Apr. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
131737,635 01109/2013 De Vona Cole
96116 7590 05/02/2018
Partners Law Group, Inc.
1217 Wilshire Blvd., #3176
SANTA MONICA, CA 90403
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
DC US UTIL 001 CON 5963
EXAMINER
COBURN, CORBETT B
ART UNIT PAPER NUMBER
3714
NOTIFICATION DATE DELIVERY MODE
05/02/2018 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):
steve@partnerslawgroup.com
patentattorneys@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DEVONA COLE
Appeal2016-003986
Application 13/737,635
Technology Center 3700
Before STEVEN D.A. McCARTHY, JILL D. HILL, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
HILL, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
De Vona Cole ("Appellant") appeals under 35 U.S.C. § 134(a) from
the Examiner's final decision rejecting claims 14--25. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal2016-003986
Application 13/737,635
BACKGROUND
Independent claims 14, 19, and 25 are pending. Independent claim
14, reproduced below, illustrates the claimed invention.
14. A computer-implemented method for providing and
scheduling one or more casino tournaments over a computer
network, the method comprising:
providing one or more casino members with the ability to
create an account or log-in to provide information regarding a
plurality of casino tournaments over a computer network to
allow one or more potential players to search for and sign up to
participate as a player in one or more of the plurality of casino
tournaments;
providing the one or more casino members with a log-in
screen on one or more visual displays;
providing the one or more casino members with the
ability to create one or more special event tournament
schedules, through a first scheduler, based on pre-specified
criteria of casino tournaments information over a computer
network;
providing the one or more casino members with the
ability to create one or more daily and weekly event tournament
schedules, through the a second scheduler, based on pre-
specified criteria of casino tournaments information over a
computer network;
receiving information regarding the plurality of casino
tournaments including at least the start and end date,
tournament type, amount of the buy in, whether or not the
tournament offers a rebuy or additional buy in and numbers of
players at each tournament table offered by a casino from the
one or more casino members, the information being provided
by the at least one casino member over a computer network;
providing the one or more potential players in one or
more casino games of the plurality of casino tournaments with
the ability to search the plurality of casino tournaments offered
by the one or more casino members based on pre-specified
criteria of the plurality of casino tournaments over a computer
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network, the pre-specified criteria being selected by the one or
more potential players;
providing the results of a search of the plurality of casino
tournaments from a search requested by the one or more
potential players on a visual display or computer readable
medium, the results being provided based on the search
requested by the one of more potential players selecting one or
more pre-specified criteria regarding the plurality of casino
tournaments and including at least the start and end date,
tournament type, amount of the buy in, whether or not the
tournament offers a rebuy or additional buy in and numbers of
players at each tournament table;
calculating payout of the one or more potential players
after the one or more potential players have participated in one
or more casino tournaments;
providing the one or more casino members with the
ability to track results of the casino tournaments;
displaying gaming status of each casino tournament;
wherein the one or more casino members need to provide
casino tournament information through one of the two
schedulers over a computer network at least once before
receiving information regarding the plurality of casino
tournaments offered by the one or more casino members from
the one or more casino members; and
wherein the one or more casino members can view one or
more competitor's tournament schedule.
REJECTIONS
I. Claims 14--25 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter. Final Act. 2.
II. Claims 14, 15, and 17-25 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Conner (NANCY CONNER, GOOGLE APPS: THE
MISSING MANUAL (Pogue Press, 2008) ("Conner")) and Sabaliauskas (US
5,359,510, issued Oct. 25, 1994). Id. at 3.
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Application 13/737,635
III. Claim 16 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Conner, Sabaliauskas, and Siddique (US 2010/0030578
Al, pub. Feb. 4, 2010). Id. at 7.
ANALYSIS
Rejection I-Ineligible Subject Matter
Applying the framework in Alice, and as the first step of that analysis,
the Examiner determines that the claims are directed to the abstract idea of
scheduling a tournament (Ans. 2), which is a method of organizing human
activity (id. at 14). Regarding the second step of the Alice framework, the
Examiner determines that the additional claim elements amount to no more
than instructions to implement the abstract idea on a computer, and/or
recitation of generic computer structure performing generic computer
functions that are well-understood, routine, and conventional activities
previously known, such that the additional claim elements do not transform
the abstract idea into a patent eligible application of (significantly more
than) the abstract idea. Final Act. 2.
Appellant contends that, in Alice Corp. Pty. Ltd. v. CLS Bank
International, 134 S. Ct. 2347 (2014), the Supreme Court held that an
abstract idea had to be a fundamental practice long prevalent in a field to be
non-statutory subject matter under 35 U.S.C. § 101, and intended for abstract
ideas to be limited to financial methods. Br. 13-14 ("'abstract ideas' applies
only to those ideas which are fundamental and long prevalent, and quite
possibly to ideas which have been well-known and extensively used for
hundreds of years"). Appellant argues that the claimed invention is not an
abstract idea under Alice, because it is neither a long-prevalent, fundamental
practice nor related to commerce or finance. Id. at 15.
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The Examiner responds that Appellant's interpretation of Alice as
limiting an abstract idea to a long-prevalent, fundamental practice or related
to commerce or finance is in error and contrary to the Supreme Court's
holding in Mayo, which "makes it clear that all laws of nature, mathematical
formulas, abstract ideas and natural phenomena are ineligible for a patent
unless accompanied by 'significantly more,"' requiring no degree of
antiquity or financial subject matter. Ans. 13; see Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75-79 (2012); see also
Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335 (Fed. Cir. 2013) (discussing
an abstract idea that was not long prevalent or financial - distributing
copyrighted media over the Internet); Planet Bingo, LLC v. VKGS LLC, 576
Fed. App'x 1005 (Fed. Cir. 2014) (unpublished) (discussing an abstract idea
that was not long prevalent or financial- computer-aided management of
bingo games).
We agree with the Examiner that an abstract idea need not be a
fundamental practice long prevalent in a field, or finance-related, to be non-
statutory subject matter under 35 U.S.C. § 101.
Appellant further argues that the claims "go beyond merely reciting
the alleged abstract idea and instead recite significantly more by provid[ing]
an instruction to 'apply it."' Br. 15. As examples of "significantly more,"
Appellant recites certain limitations in the pending claims. Id. at 16-18.
Appellant likens the pending claims to the claims in Diamond v. Diehr, 450
US 175 ( 1981 ), alleging that claims are transformed into "significantly
more" than an abstract idea merely by the input of data and repeated
calculation thereof by a computer. Id. at 19-20.
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The Examiner responds that Appellant fails to explain how the recited
claim elements amount to "significantly more." Ans. 14. The Examiner
further contends that the recited elements do not contain significantly more,
because they can be performed by a person using pen and paper, or recite
only conventional and obvious extra-solution activity when employing a
computer. Id. Regarding Diehr, the Examiner responds that "significantly
more" in that case was the transformation of rubber as it cured, rather than
the input and calculation of data. Id.
We agree with the Examiner. Appellant fails to explain how the claim
elements recited on pages 16-18 of the Appeal Brief provide "significantly
more" than the abstract idea. Further, it was indeed the transformation of
rubber into a different state in Diehr that was determined to be the
"transformation" that made the claimed patent eligible. See Diehr, 450 U.S.
at 184 ("physical and chemical process for molding precision synthetic
rubber products falls within the § 101 categories of possibly patentable
subject matter. That respondents' claims involve the transformation of an
article, in this case raw, uncured synthetic rubber, into a different state or
thing cannot be disputed. The respondents' claims describe in detail a step-
by-step method for accomplishing such, beginning with the loading of a
mold with raw, uncured rubber and ending with the eventual opening of the
press at the conclusion of the cure. Industrial processes such as this are the
types which have historically been eligible to receive the protection of our
patent laws.").
For the reasons explained above, we sustain Rejection I.
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Rejection II - Obviousness of Claims 14, 15, and 17-25
Claims 14, 15, 17, and 18
The Examiner finds, regarding independent claim 14, that Conner
renders the claimed invention obvious by disclosing Google Calendar, which
includes a method and system for scheduling events on a computer network.
Final Act. 3 (citing Conner, 349-391). Although Conner does not disclose
casino tournaments, the Examiner reasons that "[ c ]asino tournaments are
events and therefore may be scheduled using Google Calendar," and
explains how such tournament scheduling would be accomplished with
Google Calendar to accomplish the claimed system and method. Id. at 3-5.
The Examiner finds that "Conner fails to explicitly teach receiving
information regarding the plurality of casino tournaments including at least
tournament type, amount of the buy in, whether or not the tournament offers
a re-buy or add-on and numbers of players at each tournament table offered
by a casino," but discloses "providing a description of the event that is
scheduled on the calendar." Id. at 4. According to the Examiner, however,
"[ c ]ommon sense suggests that it would have been obvious to one of
ordinary skill in the art at the time of the invention to describe the details of
the tournament so that potential participants would know these details before
signing up for the event." Id. The Examiner also finds that "Conner fails to
disclose calculating a payout of the one or more potential players after"
tournament participation, and "providing the one or more casino members
with the ability to track" and display tournament results. Id. at 5. The
Examiner finds, however, that Sabaliauskas discloses a tournament
scheduler displaying tournament results to players, and concludes that it
would have been obvious to one skilled in the art to modify "Conner in view
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of Sabaliauskas to display the claimed tournament results in order to provide
more information to the player." Id. at 5---6.
Appellant argues, inter alia, that the Examiner's "common sense"
reasoning is insufficient and lacks a rational underpinning, because it fails to
explain "why common sense would have made it obvious to ... describe the
various specific details of the tournaments required by the claims." Br. 21.
We agree with Appellant. Regarding independent claim 14, while
common sense can be a legitimate reason for combining references or
modifying references, the Examiner did not, in this case, provide any
evidence that one skilled in the art would have understood that "details of
the tournament" includes the claimed "tournament type, amount of the buy
in, whether or not the tournament offers a rebuy or additional buy in and
numbers of players at each tournament table offered by a casino." Final Act.
4; Br. 25 (Claims App.). The Examiner makes no findings or conclusions
that Sabaliauskas cures the above noted deficiencies of Conner with respect
to claim 14. We do not sustain the rejection of claim 14. Claims 15, 17, and
18 depend from claim 14, and we likewise do not sustain the rejection
thereof.
Claims 19--25
Appellant argues claims 19--25 as a group with claim 14. Br. 20-24.
Claims 19-25 do not, however, recite the specific tournament details that the
Examiner finds it would have been common sense to include when using
Connor's teachings to schedule an event such as a casino tournament.
Therefore, Appellant's argument that the Examiner's "common sense"
reasoning fails to explain "why common sense would have made it obvious
to ... describe the various specific details of the tournaments required by the
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claims" does not inform us of error in the rejection of claims 19--25. Br. 21.
For Appellant's remaining argument, we consider claims 19--25 as a separate
group, and select independent claim 19 as representative. 37 C.F.R.
§ 41.37(c)(l)(iv). Claims 20-25 stand or fall with claim 19.
Claim 19 recites various modules, including "a calculator module, the
calculator module calculating payout of at least one player after the player
has participated in at least one of the plurality of casino tournaments" and "a
tracker module, the tracker module tracking one or more results of the casino
tournaments by the at least one player." Relevant to claim 19, the Examiner
finds Conner fails to disclose calculating a payout of the one or more
potential players after the one or more potential players have participated in
one or more casino tournaments and providing the one or more casino
members with the ability to track results of the casino tournaments. Final
Act. 5. The Examiner finds this information is considered to be tournament
results, and Sabaliauskas teaches a tournament scheduler that displays
tournament results. Id. The Examiner finds one of ordinary skill in the art
would have wanted to modify Conner in view of Sabaliauskas to display the
claimed tournament results "in order to provide more information to the
player." Id. at 6.
Appellant argues, relevant to claim 19, that calculating a payout and
providing the casino members with the ability to track results of the casino
tournaments "requires overcoming various technical challenges that are not
common sense or taught or suggested by Conner, Sabaliauskas or any other
prior art of record." Br. 23. Appellant contends that performing such
actions "requires a sophisticated system that receives and calculates payouts
accurately according to the rules of the tournament shortly after a casino
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tournament has ended and provides accurate information to the casino
members with accurate results as to the outcome of the casino tournament."
Id.
We agree with the Examiner that one of ordinary skill in the art would
have appreciated that every tournament must calculate results at the end of
the tournament. Ans. 15. There is also no evidence that posting a table of
results on a web page, for example, would have been beyond the level of
ordinary skill in the art. We also note that claim 19 does not recite how the
calculate payout and results of the tournaments are used by the system.
We therefore sustain the rejection of claim 19. Claims 20-25 fall with
claim 19.
Rejection III - Obviousness of Claim 16
Claim 16 depends from claim 14. The Examiner makes no finding
that Siddique cures the above noted deficiencies of Conner and Sabaliauskas
with respect to claim 14. We, therefore, do not sustain Rejection III.
DECISION
We AFFIRM the rejection of claims 14--25 under 35 U.S.C. § 101 as
directed to non-statutory subject matter.
We REVERSE the rejection of claims 14, 15, 17, and 18 under 35
U.S.C. § 103(a) as unpatentable over Conner and Sabaliauskas.
We AFFIRM the rejection of claims 19-25 under 35 U.S.C. § 103(a)
as unpatentable over Conner and Sabaliauskas.
We REVERSE the rejection of claim 16 under 35 U.S.C. § 103(a) as
unpatentable over Conner, Sabaliauskas, and Siddique.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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