Ex Parte Goldman et al

Patent Trial and Appeal Board

Mar 25, 2016

13026579 (P.T.A.B. Mar. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/026,579 02/14/2011
23669 7590 03/29/2016
HUFFMAN LAW GROUP, P.C.
7702 Barnes Rd., Ste. 140-46
COLORADO SPRINGS, CO 80922
FIRST NAMED INVENTOR
Daniel M. Goldman
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.
ODDM.0129 5153
EXAMINER
PATEL, RONAK
ART UNIT PAPER NUMBER
2458
NOTIFICATION DATE DELIVERY MODE
03/29/2016 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):
PTOHLG@me.com
chris@huffmanlaw.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL M. GOLDMAN and
LORNE LANNING
Appeal2014-008348
Application 13/026,579
Technology Center 2400
Before JOSEPH L. DIXON, JENNIFER L. McKEOWN, and
SCOTT B. HOWARD, Administrative Patent Judges.
McKEOWN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-3, 5-10, 13-17, and 19-22. Claims 4, 11, 12,
and 18 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
STATEMENT OF THE CASE
Appellants' invention relates to "a platform for providing social
networking services within a virtual venue to allow for interaction between
users with third-party media content, and more specifically to a method for
instantiating viewable media into a three-dimensional platform." Spec. i-f 3.
Appeal2014-008348
Application 13/026,579
Claim 1 is illustrative and reads as follows:
1. A method of playing a collective video-watching
game that simulates crowd dynamics, the game comprising:
a group of game participants selecting videos to play to
the group;
enabling each game participant to provide positive or
negative feedback on the videos; and
simulating collective crowd responses to the videos based
upon the feedback provided by individual game participants to
the videos, wherein for any particular game participant's
feedback, the simulated crowd response simulates expressions
from multiple members of a crowd that includes but is not
limited to that particular game participant.
THE REJECTIONS
The Examiner rejected claims 1-3, 14, 16, 17, and 20-22 under
35 U.S.C. § 103(a) as unpatentable over Siddique et al. (US 2010/0030578
Al; Feb. 4, 2010) and McMain et al. (US 2007/0024002 Al; Feb. 1, 2007).
Non-Final Act. 7-13. 1
The Examiner rejected claim 5 under 35 U.S.C. § 103(a) as
unpatentable over Siddique, McMain, and Walker et al. (US 2005/0064926
Al; Mar. 24, 2005). Non-Final Act. 13-14.
The Examiner rejected claim 6 under 35 U.S.C. § 103(a) as
unpatentable over Siddique, McMain, Walker, and Robinson et al. (US
2008/0222295 Al; Sept. 11, 2008). Non-Final Act. 14.
1 Throughout this opinion, we refer to (1) the Examiner's Non-Final Action,
mailed July 26, 2013 ("Non-Final Act."); (2) the Appeal Brief, filed
February 19, 2014 ("Br."); and (3) the Examiner's Answer, mailed May 28,
2014 ("Ans.").
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Application 13/026,579
The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as
unpatentable over Siddique, McMain, Walker, Robinson, Schultz et al. (US
2006/0148568 Al; July 6, 2006), and Dunn et al. (US 2003/0154486 Al;
Aug. 14, 2003). Non-Final Act. 14--16.
The Examiner rejected claims 9-13 under 35 U.S.C. § 103(a) as
unpatentable over Siddique and Robinson. Non-Final Act. 16-18.
The Examiner rejected claim 15 under 35 U.S.C. § 103(a) as
unpatentable over Siddique, McMain, and Robinson. Non-Final Act. 19.
The Examiner rejected claim 8 under 35 U.S.C. § 103(a) as
unpatentable over Siddique, McMain, and Naimark et al. (US 2008/0320159
Al; Dec. 25, 2008). Non-Final Act. 19-20.
The Examiner rejected claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Siddique, McMain, and Schultz. Non-Final Act. 20-21.
Claims 1-3
THE OBVIOUSNESS REJECTION BASED ON
SIDDIQUE AND MCMAIN2
Appellants contend that neither Siddique nor McMain teach
simulation of crowd dynamics based upon game participant feedback on
2 As an initial matter, we note that should there be further prosecution of this
application (including any review for allowance), the Examiner may wish to
review the claims for compliance under 35 U.S.C. § 101 in light of the
issued preliminary examination instructions on patent eligible subject matter.
See Memorandum from Andrew H. Hirshfeld, Deputy Commissioner, to
Patent Examining Corps. on Preliminary Examination Instructions in view
of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank
International, et al. (June 25, 2014) (on file with USPTO)
(http://www. uspto. gov I sites/ default/files/patents/ announce
/alice_pec_25jun2014.pdf).
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Application 13/026,579
jointly watched videos. Br. 9-10. Specifically, according to Appellants,
while Siddique teaches that users can collaboratively view videos and
movies and cause their virtual characters to provide feedback, "Siddique did
not stitch these capabilities together into a video-watching game." Br. 9.
Additionally, Appellants assert that "Siddique also [does] not teach
simulating collective crowd responses to the videos based on the
participants' feedback." Id.
We disagree. As the Examiner points out, Siddique teaches a virtual
environment for users that includes features such as collaborative viewing of
videos, photos, television, and other synchronized forms of multimedia
sharing. See, e.g., Ans. 2 (citing Siddique i-f 113); see also Siddique i-fi-1111,
112, 117. Siddique, for example, describes that:
[Users] may select and invite other users to participate in
synchronized sessions for sharing videos, and other multimedia.
In addition to synchronized sharing, immersive features are
provided by system 10 to further facilitate collaboration
between users and to make their experience increasingly real
and life-like as well as functional and entertaining.
Siddique i-f 113.
Siddique also expressly discloses that:
During synchronized multimedia sharing, users can further
interact by expressing emotions through their character models
which may be engaged in the same environment or through
emoticons and other animated objects. In an exemplary
embodiment, if a funny scene is playing in a video, the user can
make their user model smile via a control key for their user
model which may be pre-programmed to respond with a smile
when the given control key is pressed.
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Application 13/026,579
Siddique if 113 (emphasis added). We note that Siddique's "character
models" are "three dimensional models that are representative of [a user's]
physical profile created." Siddique if 98.
While the example in paragraph if 113 only refers to smiling, Siddique
elsewhere teaches a variety of ways to control the models expressions,
movements, and actions. For example, mood emoticons, action icons, text,
speech, and tracking a user's expressions, movements, and actions through a
webcam or other device are all identified by Siddique as ways to control the
expressions, movements, and actions of the character model. See, e.g.,
Siddique if 110. As such, Siddique teaches or suggests a simulated response
of a character model in the virtual environment based on a participant's
feedback.
We recognize that Siddique does not expressly refer to a simulated
collective crowd response, but Siddique' s virtual environment, and
particularly the multimedia sharing virtual environment, is directed to group
collaboration. See, e.g., Siddique if 113 (describing that users may select
and invite other users to participate in the session); see also Siddique if 110
(noting that the community model lets users interact with other users or
members); Siddique if 111. As such, Siddique at least suggests a group of
character models where the character models simulate a collective crowd
response based on user participants' feedback. We, therefore, find
unpersuasive Appellants' argument that Siddique fails to teach either a
video-watching game or simulating collective crowd responses to the videos
based on the participants' feedback.
We agree with Appellants' arguments with respect to McMain but
note that the Board may sustain a multi-reference rejection under 35 U.S.C.
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§ 103(a) by relying on one of the references alone without having to
designate the reliance on less than the total amount of evidence as a new
ground of rejection. In re Bush, 296 F.2d 491, 496 (CCPA 1961); see also
In re Boyer, 363 F.2d 455, 458 n.2 (CCPA 1966); In re Kronig, 539 F.2d
1300 (CCPA 1976).
As discussed above, we are not persuaded that Siddique alone fails to
teach or suggest the limitations of claim 1. Accordingly, we sustain the
Examiner's rejections of claim 1 as well as claims 2 and 3, not argued with
particularity.
Claims 21 and 22
We are persuaded, however, that Siddique fails to teach the limitations
of claim 21. See Br. 11. Namely, claim 21 recites "the simulated crowd
response for any particular game participant's feedback includes consistent
expressions by entities near that particular game participant." While
Siddique teaches a simulated collective crowd response based on
participants' feedback, Siddique lacks any teaching that this simulated
crowd response includes consistent expressions by entities, such as artificial
intelligence avatars, near the character model of that particular game
participant.
The Examiner relies on Siddique's disclosure of a character model
interacting with virtual movie characters or celebrities (see Siddique i-f 117),
but, as Appellants point out, the Examiner fails to explain how this virtual
interaction is a simulated crowd response to videos including consistent
expressions by entities near that particular game participant. Br. 11.
Accordingly, we agree with Appellants that the Examiner erred in rejecting
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claim 21, and dependant claim 22, as unpatentable over Siddique and
McMain. 3
Claims 14, 16, 17, and 20
With respect to claims 14, 16, 17, and 20, Appellants present similar
arguments as argued with respect to claim 1. See Br. 13 (asserting that
neither Siddique nor McMain teach a video-watching game and that neither
reference teaches simulating collective crowd responses to the videos based
on the participants' feedback). For the reasons discussed above, we find
these arguments unpersuasive.
Additionally, Appellants contend that "the Office Action is vague in
identifying what, in Siddique, constitute[ s] a video selection pane, video
playing screen, or representation of a virtual audience." Br. 12. The
Examiner, though, at least relies on paragraph 113 of Siddique in rejecting
these claims. In paragraph 113, Siddique describes that users may select a
video and that a user may "customize their viewing environments, and/or
background themes and skins for their viewer." As such, Siddique teaches
or suggests a video selection pane and a viewer, i.e. a video playing screen.
The Examiner's reliance on Siddique's paragraph 202 and Figure 20
additionally supports the rejection by providing an exemplary description
and depiction of selection pane and virtual video screen. While these
embodiments do not expressly reference to a video watching game, these
3 While we reverse the Examiner rejection of claim 21 as unpatentable over
Siddique and McMain, we note that the Specification lacks any disclosure of
the recited "entities." As such, the Examiner may wish to consider whether
the term "entities" is sufficiently definite and supported as required by 35
U.S.C. § 112.
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Application 13/026,579
teachings together with paragraph 113 of Siddique teach the disputed
limitations.
Further, as discussed above, although Siddique does not expressly
refer to a virtual audience, Siddique describes groups of users with
associated character models. Such groups of character models, which
express reactions to the videos in the virtual environment based on user or
participant feedback, would at least suggest a virtual audience.
As discussed above, we are not persuaded that Siddique alone fails to
teach or suggest the disputed limitations. Accordingly, we sustain the
Examiner's rejections of claims 14, 16, 17, and 20.
THE OBVIOUSNESS REJECTION BASED ON SIDDIQUE, MCMAIN,
WALTER, ROBINSON, SCHULTZ, AND DUNN
Claim 7
We agree with Appellants that the Examiner fails to establish a prima
facie case of obviousness with respect to claim 7. See Br. 14. The Examiner
relies on Schultz as teaching terminating a video if the collective feedback
exceeds a threshold. See Ans. 10-11. Schultz, however, is directed to
terminating an application if the game console receives no response or a
negative response indicating that the physical gaming media is not present
on the game carousel. See Schultz i-f 1 O; see also Br. 14.
Notably, the claimed collective feedback is the feedback of the game
participants to the video. The Examiner fails to sufficiently explain how
Schultz's negative response indicating a lack of a physical gaming media in
a game carousel, either alone or in combination with the additionally cited
prior art, teaches terminating a video when the collective feedback of game
participants to the video is negative and exceeds a threshold. Accordingly,
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Application 13/026,579
we are persuaded that the Examiner erred in rejecting claim 7 as
unpatentable based on Siddique, McMain, Walter, Robinson, Schultz, and
Dunn.
THE OBVIOUSNESS REJECTIONS BASED ON SIDDIQUE, MCMAIN,
AND NAIMARK AND SIDDIQUE AND ROBINSON
Claims 8-10 and 13
Based on the record before us, we are not persuaded that the Examiner
erred in rejecting claims 8-10 and 13 as obvious.
Appellants explain that they do not challenge Naimark for describing
a method for ranking streaming videos based on viewer feedback and
comments because "rating and ranking videos, considered in isolation, is not
new." Br. 16-17. Similarly, Appellants do not dispute Robinson's teaching
of a video queue, including the ability to drag and drop videos into the
queue. Br. 15. Rather, Appellants contend that none of the cited prior art
teach or suggest a video-watching game that includes simulating collective
crowd responses to the videos based on the participants' feedback. Id. at
15-1 7. As discussed above, we find these arguments unavailing. In
particular, we are not persuaded that Siddique alone fails to teach or suggest
these disputed limitations. Accordingly, we sustain the Examiner's
rejections of claims 8-10 and 13.
THE REMAINING OBVIOUSNESS REJECTIONS
Appellants present no separate arguments of patentability with respect
to the remaining obviousness rejections. See, e.g., Br. 13, 16. As such, we
are not persuaded that the Examiner erred in rejecting claims 5, 6, 15, and
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19. Accordingly, for the reasons discussed above, we sustain the
Examiner's rejections of these claims.
CONCLUSIONS
The Examiner did not err in rejecting claims 1-3, 5, 6, 8-10, 13-17,
19, and 20 under§ 103, but did err in rejecting claims 7, 21, and 22.
DECISION
We affirm the Examiner's decision to reject claims 1-3, 5, 6, 8-10,
13-17, 19, and 20, but reverse the Examiner's decision to reject claims 7,
21, and 22.
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-IN-PART
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