Ex Parte Niitani et al

Patent Trial and Appeal Board

Jul 31, 2017

13927878 (P.T.A.B. Jul. 31, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/927,878 06/26/2013 Ryusuke NIITANI RYM-723-3778 1010
27562 7590 08/02/2017
NIXON & VANDERHYE, P.C.
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
WATHEN, BRIAN W
ART UNIT PAPER NUMBER
2194
NOTIFICATION DATE DELIVERY MODE
08/02/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex Parte RYUSUKE NIITANI, MASAHIRO SHIOTANI, TOYOKAZU
NONAKA, TAKEHIKO HOSOKAWA, AND KOUICHI KAWAMOTO
Appeal 2017-004093
Application 13/927,878
Technology Center 2100
Before CARL WHITEHEAD, JR., BETH Z. SHAW, and
MICHAEL J. ENGLE, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1—24 (“pending claims”), which
represent all the pending claims. Notice of Appeal. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
1 Throughout this Decision we have considered the Appeal Brief filed
October 19, 2016 (“App. Br.”), the Reply Brief filed Jan. 4, 2017 (“Reply
Br.”), the Specification filed June 26, 2013 (“Spec.”), the Examiner’s
Answer mailed November 17, 2016 (“Ans.”) and the Final Rejection mailed
May 19, 2016 (“Final Act.”).
Appeal 2017-004093
Application 13/927,878
INVENTION
Appellants’ invention is directed to an “exchange of application data
between information processing apparatuses.” Spec. 14.
Claim 1 is illustrative and reproduced below with disputed limitations
emphasized:
1. A non-transitory computer-readable storage medium having
stored therein an information processing program, wherein the information
processing program causes a computer of an information processing
apparatus to function as:
a data storage storing at least data that can be used by a first instance
of a first application program or data that can be used by a first instance of a
second application program;
a communication circuitry for transmitting, data that is usable by the
first instance of the first application program and stored in the data storage,
and/or data that is usable by the first instance of the second application
program and stored in the data storage, to another information processing
apparatus, and also, for receiving, data that is generated by a second instance
of the first application program and stored in data storage of the other
information processing apparatus, and/or data that is generated by a second
instance of the second application program and stored in the data storage of
the other information processing apparatus, from the other information
processing apparatus, using wireless communication, the data generated by
the second instance of the second application program being related to
communication history of the other information processing apparatus', and
an information processor for updating, when the data generated by the
second instance of the second application program, and not the data
generated by the second instance of the first application program, is received
from the other information processing apparatus by the communication
circuitry, a parameter of an object of the first instance of the first application
program using the received data related to the communication history of the
other information processing apparatus.
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Appeal 2017-004093
Application 13/927,878
REJECTION
The Examiner rejected claims 1 and 3—22 under 35 U.S.C. § 103 as
being unpatentable over Leingang et al. (US 2010/0144434) (hereinafter
Leingang) and Pelusi et al., Opportunistic Networking: Data Forwarding in
Disconnected Mobile Ad Floe Networks, IEEE Commc’ns Magazine 134
(Nov. 2006) (hereinafter Pelusi). Ans. 2.
The Examiner rejected Claim 23 under 35 U.S.C. 103 as being
unpatentable over the Leingang, Pelusi, and Nintendo, Nintendo 3DS -
Hardware Features and Overview at Nintendo,
http://www.nintendo.com/3ds/features (as archived Feb. 27, 2012)
(hereinafter Nintendo). Ans. 2.
The Examiner rejected claim 24 under 35 U.S.C. 103 as being
unpatentable over the Leingang, Pelusi, and Soute et al., Head Up Games:
combining the best of both worlds by merging traditional and digital play,
14 Pers Ubiquit Comput 435 (2010) (hereinafter Soute).2 Ans. 2.
ANALYSIS
We have reviewed Appellants’ arguments in the Briefs, the
Examiner’s rejection, and the Examiner’s response to the Appellants’
arguments. We are not persuaded of error in the Examiner’s rejection of the
claims. We adopt the Examiner’s findings and explanations provided in the
Final Rejection and Answer. Final Act. 3—14; Ans. 3—18.
Claim 1
Appellants argue the Examiner erred in finding the combination of
Leingang and Pelusi “receiving . . . data that is generated by a second
2 In the Answer, the Examiner withdrew the rejection of claim 2 under
35 U.S.C. 112, 4th paragraph. Ans. 2.
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Appeal 2017-004093
Application 13/927,878
instance of the second application program. . . from the other information
processing apparatus,... the data generated by the second instance of the
second application program being related to communication history of the
other information processing apparatusand “updating. . . a parameter of
an object of the first instance of the first application program using the
received data related to the communication history of the other information
processing apparatus.''’ App. Br. 19—22. Appellants acknowledge Pelusi
teaches that a message can be received and transferred through a series of
carriers, but argue Pelusi does not teach that any carrier receives
communication history data of another carrier, such as data about the
number of counterparts with which another carrier has performed
communications. Id. at 20.
The Examiner explains the claim limitation “communication history
data” must be given its broadest reasonable interpretation. Ans. 7. The
Examiner construes “communication history data” to mean the number of
communication counterparts and/or data indicating the history of
communication of other arbitrary data. Id. at 7—8 (emphasis added). The
Examiner explains, and we agree, that this interpretation is consistent with
the Specification. Id. In particular, paragraph 39 of the Specification
provides multiple possible embodiments of what could constitute
communication history data, such as “data indicating the history of
communication of other arbitrary data.” Id. (citing Spec. 139).
We agree with the Examiner’s comprehensive response to Appellants’
arguments and analysis. Contrary to Appellants’ arguments, Pelusi teaches
the carriers receive communication history data because Pelusi teaches that
when a message is delivered via hop-by-hop delivery and eventually makes
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Appeal 2017-004093
Application 13/927,878
it to the destination, the message itself teaches data related to
communication history, i.e., data indicating the history of communication of
other arbitrary data. Ans. 12—16. Although Appellants argue in the Reply
Brief that Pelusi’s message is not related to data that can indicate the history
of communication of any data, we disagree. Reply Br. 4. Appellants’
arguments that Pelusi does not teach exchanging the number of other
information processing apparatuses with which data has been exchanged is
not commensurate with the scope of the claim because the language is not
recited in claim 1.
Accordingly, we are not persuaded by Appellants’ arguments with
respect to claim 1 for the reasons identified by the Examiner in the Final
Rejection and Answer. See Ans. at 6—16. Thus, we sustain the Examiner’s
rejection of claim 1, and the rejection of claims 9-13 and 20, which were
argued together with claim 1.
Claim 23
Claim 23 recites, inter alia, “updating the first parameter corresponds
to adding ally characters of the first application.” The Examiner finds
Leingang teaches unlocking rewards to further the player’s goals or
objectives, and Nintendo teaches adding characters. Final Rej. 11.
Appellants argue Nintendo’s cited section does not teach adding the
exchanged Mii characters as “ally” characters of an application such as a
war game. App. Br. 23. The Examiner finds neither the Specification nor
the claims define what constitutes an “ally character.” Ans. 14. We agree
with the Examiner that Appellants provide insufficient evidence proving that
the Specification or claims limit “ally character” in a way that, under a broad
but reasonable interpretation, is not encompassed by Nintendo’s teachings of
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Appeal 2017-004093
Application 13/927,878
Mii characters. See id.
In the Reply Brief, Appellants argue that “Nintendo is silent with
respect to using the Mii character to help game play” and that “Nintendo 2
does not disclose or suggest that any Mii character will be associated with
the game player as a helper.” Reply Br. 8—9. However, we are not
persuaded of error in the Examiner’s finding that a Mii character exchange
teaches a helper that helps the receiver’s gameplay. Ans. 17—18.
Appellants’ statements about the Mii characters (Reply Br. 8—9), however,
constitute unpersuasive attorney argument. “[M]ere argument and
conclusory statements . . . cannot establish patentability.” In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984) (citing In re Lindner, 457 F.2d 506, 508
(CCPA 1972)).
Accordingly, we are not persuaded of error, and we therefore sustain
the Examiner’s rejection of claim 23.
Remaining Pending Claims
Because Appellants have not presented separate patentability
arguments or have reiterated substantially the same arguments as those
previously discussed for patentability of claim 1 above, we also sustain the
rejection of the remaining pending claims for the same reasons.
DECISION
The decision of the Examiner to reject claims 1—24 is affirmed.
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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