10764739 (P.T.A.B. Nov. 14, 2013)

Ex Parte Connelly

Patent Trial and Appeal BoardNov 14, 2013

10764739 (P.T.A.B. Nov. 14, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL P. CONNELLY ____________ Appeal 2011-013239 Application 10/764,739 Technology Center 3700 ____________ Before GAY ANN SPAHN, JOHN W. MORRISON, and MICHELLE R. OSINSKI, Administrative Patent Judges. SPAHN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s rejection of claims 1-37 under 35 U.S.C. § 102(a) as anticipated by Hecht (US 2003/0073489 A1, published Apr. 17, 2003). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Appeal 2011-013239 Application 10/764,739 2 CLAIMED SUBJECT MATTER The claimed subject matter relates to “gaming systems having independently randomized audio tracks.” Spec. 1, ll. 4-5. Claim 1, reproduced below, with emphasis added, is illustrative of the appealed subject matter. 1. A computerized gaming system, comprising: a gaming module, comprising a processor and gaming code which is operable when executed on the processor to conduct a wagering game on which monetary value can be wagered; and an audio module, the audio module operable to play an audio track, the audio track comprising a plurality of selected audio element tracks that are played at the same time to create the played audio track, wherein the selected audio element tracks comprise two or more instruments played in the same key in synchronization and are selected by the wagering game machine based on at least one of random selection and a randomly ordered list. OPINION Appellant argues claims 1, 19, and 37 as a group and have not presented arguments for the patentability of claims 2-18 and 20-36 apart from independent claims 1 and 19. See Br. 9-11. Therefore, in accordance with 37 C.F.R. § 41.37(c)(1)(vii) (2011), we select claim 1 as the representative claim to decide the appeal of the rejection of these claims, with claims 2-37 falling with claim 1. The Examiner finds that Hecht anticipates independent claim 1 by disclosing a computerized gaming system including, inter alia: an audio module . . . operable to play an audio track (an audio track is any recorded sound, song or piece of music), the audio track comprising a plurality of selected audio element tracks Appeal 2011-013239 Application 10/764,739 3 (audio element tracks are musical variables) that are played at the same time to create the played audio track, (¶ [0055]), wherein the selected audio element tracks comprise two or more instruments (wherein the musical variables consist in changes in instrument), played in the same key (wherein Hecht teaches the entire music being played in the same key any changes not related in key will continue the music in the same key, therefore all selections of instrument changes are in the same key or present key) in synchronization . . . and (¶ [0050]) shows that multiple instruments are played and that the music is played synchronized and same key. Ans. 4-5. Appellant notes that the Examiner’s rejection relies on Hecht’s paragraphs [0009], [0043], and [0050], and Appellant argues that reliance on these paragraphs is misplaced, because these paragraphs do not disclose claim 1’s subject matter of “selected audio element tracks comprise two or more instruments played in the same key in synchronization.” Br. 9. More particularly, Appellant argues that neither of Hecht’s paragraphs [0009] and [0043] “make any reference to keys or selecting track elements having the same key,” and while Hecht’s paragraph [0050] does reference keys, “rather than selecting track elements having the same key as claimed, Hecht describes the opposite where a track having a different key is selected or created.” Br. 9. Appellant also argues that “Hecht fails to provide a teaching or suggestion of . . . playing the plurality of audio tracks comprising two or more instruments played in the same key.” Br. 11. Finally, although Appellant concedes that Hecht’s paragraph [0051] describes “a fade-in and fade-out between two sound recordings and this may be a concurrent playing of the sound recordings for a brief period,” Appellant argues that “[t]he sound recordings described in Hecht . . . are not Appeal 2011-013239 Application 10/764,739 4 in the same key and instead are described in paragraph [0050] [as] being in different keys.” Id. Hecht discloses a gaming device with sound recording changes associated with player inputs. Hecht, Title. The gaming device includes a data storage storing at least one primary sound file and at least one variant sound file which is a variation of the primary sound file. Hecht, Abstr. The variation may be a change in any of key, tempo, style, and melody. Hecht 4, para. [0050]. When a predetermined event occurs, the game device plays the primary sound file, and when the player makes a predetermined input, the gaming device plays the variant sound file and stops playing the primary sound file. Hecht, Abstr. For instance, as shown in Figure 4A, when the gaming device is playing a predetermined song in key C, if a player makes input W, the gaming device plays the same song in key D and then stops playing the song in key C. Hecht, p. 4, para. [0050]. The starting of the song in key D and stopping of the song in key C may be done in fade- out/fade-in mode, wherein both the primary sound recording in key C and the variant sound recording in key D may be played concurrently for a brief period of time. See Hecht, p. 4-5, para. [0051]. However, as pointed out by the Examiner, Hecht’s Figures 4B-4D change tempo, style, and melody, respectively, instead of changing key. See Hecht, p. 4, para. [0050]. Thus, the examples disclosed in Hecht’s Figures 4B-4D disclose instances where the key of the primary sound recording and the variant sound recording are the same, because the variant sound recording is only different from the primary sound recording in tempo in Figure 4B, in style in Figure 4C, and in melody in Figure 4D. Appeal 2011-013239 Application 10/764,739 5 Based on the foregoing description of Hecht’s disclosure, we are not persuaded by Appellant’s arguments. Hecht’s fade-in/fade-out mode does describe simultaneous playing of the primary sound recording and a variant sound recording, and those two sound recordings are played in the same key when the other variables of tempo (Hecht’s Figure 4B), style (Hecht’s Figure 4C), and melody (Hecht’s Figure 4D) are changed between the primary sound recording and the variant sound recording. Thus, the Examiner has shown Hecht discloses that “the selected audio element tracks comprise two or more instruments played in the same key in synchronization” as required by independent claim 1. Accordingly, we sustain the Examiner’s rejection of independent claim 1 and claims 2-37 which fall therewith, under 35 U.S.C. § 102(a) as anticipated by Hecht. DECISION We affirm the Examiner’s decision to reject claims 1-37. 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 Klh