Ex Parte Middleton

Patent Trial and Appeal Board

Jul 22, 2016

11970243 (P.T.A.B. Jul. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111970,243 01107/2008 David Desmond MIDDLETON
23380 7590 07/26/2016
TUCKER ELLIS LLP
950 MAIN A VENUE
SUITE 1100
CLEVELAND, OH 44113-7213
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.
PS07 1828US2 2656
EXAMINER
LIDDLE, JAY TRENT
ART UNIT PAPER NUMBER
3716
NOTIFICATION DATE DELIVERY MODE
07/26/2016 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):
patents@tuckerellis.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID DESMOND MIDDLETON
Appeal 2014-006593 1,2
Application 11/970,243
Technology Center 3700
Before NINA L. MEDLOCK, PHILIP J. HOFFMANN, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
HOFFMANN, Administrative Patent Judge.
DECISION ON APPEAL
STATEivIENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1, 14, 15, 19, 20, and 25-29. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
According to Appellant, the invention is directed to "a method [that]
may include identifying physical circumstances information associated with
1 Our decision references Appellant's Specification ("Spec.," filed Jan. 7,
2008) and Appeal Brief ("Br.," filed Jan. 27, 2014), as well as the Final
Office Action ("Final Action," mailed Aug. 28, 2013) and the Examiner's
Answer ("Answer," mailed Feb. 25, 2014).
2 According to Appellant, "[t]he real party in interest ... is Sony Mobile
Communications AB." Br. 1.
Appeal2014-006593
Application 11/970,243
• 1 • 1 • 1· 1·,.. • • • ' .1 a gammg aev1ce; ana prov10mg or momrymg a gammg environmem on me
gaming device based on the identified physical circumstances information."
Spec. i-f 4. Independent claims 1, 15, and 19 are the only independent claims
under appeal. See Br., Claims App. We reproduced claim 1, below, as
representative of the appealed claims.
Id.
1. A method, comprising:
identifying, by a gaming device, physical circumstances
information associated with the gaming device, where the
physical circumstances information comprises:
ambient condition information representative of a physical
environment associated with the gaming device, where the
ambient condition information comprises at least one of a level
of ambient light or received sound information;
dynamically providing or modifying, by the gaming
device, a gaming environment on the gaming device based on the
identified physical circumstances information comprising the
ambient condition information; and
providing or modifying, by the gaming device, gameplay
based on the ambient condition information,
wherein providing or modifying the gameplay based on
the ambient condition information comprises adjusting one or
more environmental elements of the provided gaming
environment.
REJECTIONS AND PRIOR ART
The Examiner rejects claims 1 and 14 under 35 U.S.C. § 102(b) as
anticipated by Rosenberg (US 2006/0223635 Al, pub. Oct. 5, 2006).
The Examiner rejects claims 15, 19, 20, and 26-28 under 35 U.S.C.
§ 103(a) as unpatentable over Rosenberg and Tatsumi
(US 2008/0220874 Al, pub. Sept. 11, 2008).
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Appeal2014-006593
Application 11/970,243
The Examiner rejects claim 25 under 35 U.S.C. § 103(a) as
unpatentable over Rosenberg and Cunningham (US 2003/0224855 Al, pub.
Dec. 4, 2003).
The Examiner rejects claim 29 under 35 U.S.C. § 103(a) as
unpatentable over Rosenberg, Tatsumi, and Cunningham.
See Final Action 2-9; see also Answer 2.
ANALYSIS
Independent claim 1 recites, among other limitations, the following:
identifj;ing, by a gaming device, physical circumstances
information associated with the gaming device, where the
physical circumstances information comprises . . . ambient
condition information representative of a physical environment
associated with the gaming device, where the ambient condition
information comprises at least one of a level of ambient light or
received sound information.
Br., Claims App. (emphases added). The Examiner finds that Rosenberg's
paragraphs 33, 39, and 80-81 disclose the claimed identifying a level of
ambient light. See Final Action 3. More specifically, the Examiner finds
that the claim term "ambient" may be defined as "relating to the immediate
surrounding of something" (id. at 9), and that consistent with that definition,
Rosenberg's paragraph 39 "discusses being able to detect light from another
device which once emitted from other device would be considered to be
ambient light" (id. at 3), while the other cited paragraphs "discuss[] the use
of a camera on the gaming machine, and it is clear that it is a regular camera
that has the capability of recording and then displaying reflections of light
thus also meeting the requirement of the claim (id.)." We determine that the
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Appeal2014-006593
Application 11/970,243
Examiner's findings are reasonable and appear to be supported by a
preponderance of the evidence.
In response, Appellant argues that the Examiner does not establish
that any of the cited paragraphs from Rosenberg disclose identifying an
ambient light level as required by the claim. See Br. 9-12. In particular,
Appellant proffers a different definition of "ambient," and argues that
Rosenberg does not disclose "ambient light" consistent with that definition.
Irrespective of the fact that Appellant's definition of the term "ambient"
appears to be reasonable, Appellant's argument is not persuasive of
Examiner error. For example, Appellant does not establish persuasively that
the Examiner's definition is unreasonable in view of Appellant's
Specification, or that Rosenberg does not disclose "ambient light" consistent
with the Examiner's definition.
Appellant further argues that the Examiner errs in determining that
ambient light in Rosenberg is "used to dynamically provide or modify, by
the gaming device, a gaming environment on the gaming device, as required
by claim 1." Br. 13. The Examiner's finding that Rosenberg "shows that
environmental elements are adjusted. Such examples provided by
Rosenberg of this adjusting is seen both in simulated lighting conditions
([0086]) and providing overlaid imagery on the playing field such as
barriers, force fields, and other simulated objects ([O 109])" is reasonable.
Thus, Appellant does not persuade us that the rejection of claim 1 is
erroneous.
Based on the foregoing, we sustain the anticipation rejection of
claim 1. Inasmuch as Appellant argues the obviousness rejection of
independent claims 15 and 19 is erroneous for similar reasons that the
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Appeal2014-006593
Application 11/970,243
• ,. ,.. 1 • 1 • ' • .1 • ,. ,.. 1 • 1 !""' 1
reJecuon or crn1m l is erroneous, we susrnm me reJecuon or crn1ms l :J ana
19. See Br. 14--15. We also sustain the rejection of dependent claims 14,
20, and 25-29, which Appellant argues are allowable due to their
dependence from the independent claims. See id. at 14--16.
DECISION
We AFFIRM the Examiner's obviousness rejections of claims 1, 14,
15, 19, 20, and 25-29.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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