Ex Parte Reed

Patent Trial and Appeal Board

Dec 31, 2013

10637041 (P.T.A.B. Dec. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte COLIN REED
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Appeal 2011-010640
Application 10/637,041
Technology Center 3700
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Before EDWARD A. BROWN, MICHAEL L. HOELTER, and
LYNNE H. BROWNE, Administrative Patent Judges.

BROWN, Administrative Patent Judge.

DECISION ON APPEAL
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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 2, 5-8, 14-16, 20, and 23-28. App. Br. 5.1 We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

CLAIMED SUBJECT MATTER
Claims 1, 7, 14, and 15 are independent. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A computer-implemented method for
modeling a track, the method being performed
using a computer including at least one processor
to execute instructions tangibly stored on a
computer readable storage medium, the method
comprising:
defining, using the computer, a curved outer
arc and an inner arc which together define an arc
track section therebetween, and using splines to
define height data for the arc track section.

1 Claims 3, 4, 9-13, and 17-19 were cancelled. App. Br. 5.
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REJECTIONS2
Claims 1, 2, 6-8, 14-16, 20, and 23-28 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Leach (US 2003/0109296 A1; published
Jun. 12, 2003).
Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Leach.

ANALYSIS
Rejection under 35 U.S.C. § 102(e)
Claims 1, 2, 6-8, and 14-16
Appellant argues claims 1, 2, 6-8, and 14-16 as a group. App. Br. 12-
17. We select claim 1 as representative of the group, with claims 2, 6-8, and
14-16 standing or falling with claim 1. See 37 C.F.R. § 41.37(c)(vii).
Claim 1 recites, inter alia, “defining, using the computer, a curved
outer arc and an inner arc which together define an arc track section
therebetween, and using splines to define height data for the arc track
section.” The Examiner found that Leach discloses defining a curved outer
arc and an inner arc which together define an arc track section therebetween
(Ans. 4 (citing Leach, paras. [0016], [0151]; fig. 20)), and using splines to
define height data for the track section (id. (citing Leach, paras. [0130],

2 The Examiner’s Answer states “Applicant’s arguments with respect to
claims 1, 2, 5-8, 14-16, and 20-28 have been considered but are moot in
view of the new ground(s) of rejection.” Ans. 6. However, Appellant
correctly noted that no new ground of rejection appears in the Examiner’s
Answer. Reply Br. 2. We note the Office communication dated July 1,
2011, acknowledges consideration of the Reply Brief, but does not mention
any new ground of rejection. We treat the Examiner’s reference to a new
ground of rejection in the Examiner’s Answer as having been inadvertent.
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[0134], [0151], [0181]-[0190])). The Examiner also found “the limitation of
curved arc [. . .] is anticipated from Leach's teaching of using splines
techniques and cubic interpolation to form the track with smooth curves of
the tracks (paragraphs 54, 156).” Id.
In contrast, Appellant contends that Leach does not disclose the
limitation reciting “‘defining . . . a curved outer arc and an inner arc which
together define an arc track section therebetween’” in claim 1, or the similar
limitations in independent claims 7, 14, and 15. App. Br. 12. Appellant
contends that Leach teaches techniques for approximating curved track
segments by building track portions using line segments. Id.; see also id. at
13 (citing Leach, paras. [0016], [0151]). Appellant also contends that Leach
teaches building a track using rectangular segments, and according to Leach,
there are no “‘curved arcs,’” but only segmented approximations of
“‘curves’” comprised of quadrilaterals joined at angles. Id. at 13 (citing
Leach, paras. [0013], [0131]; figs. 6, 8, 10). Appellant acknowledges that
Leach teaches using a cubic spline equation to smooth rough angles
produced by joining rectangular segments to render a “‘curve,’” but
contends that a true “‘arc’” is never formed. Id. at 14. Appellant also
contends that Leach’s disclosure of using cubic interpolation appears to
suggest trying to approximate, or give the impression of, a curve, by using a
smoothing algorithm. Id. at 15 (citing Leach, paras. [0129], [0175]).
Appellant further contends that Figure 20 of Leach is not an express
teaching of using curved outer and inner arcs together to define an arc
section. Id. at 16.
Appellant’s contentions that Leach does not disclose “curved arcs,”
but rather only teaches approximating curves and curved arcs, are not
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persuasive. The Examiner found that Leach teaches forming track with
smooth curves. Ans. 7 (citing Leach, para. [0156]). Leach states “[i]t
should also be appreciated that although FIGS. 6, 8 and 9 show sharp bends
between adjacent segments, in fact the co-ordinate pairs are used to generate
smooth curves to improve the graphics displayed to a user, using an
interpolation method described below.” Leach, para. [0156]; emphasis
added. Appellant has not provided any persuasive argument or evidence to
show that the claimed “curved outer arc and an inner arc” have a shape that
is distinguishable from the “smooth curves” resulting from using an
interpolation method as disclosed by Leach. In this regard, Appellant has
not directed us to a definition of “curved arc” in the Specification, or
provided any other evidence to show, that this term should be construed in
light of the Specification to distinguish Leach’s “smooth curves.”
Appellant also contends that Leach’s technique of using line segments
and quadrilaterals “is not the same as actually using curved outer and inner
arcs that together define an arc track section therebetween,” as claimed.
App. Br. 12. Appellant also contends that paragraphs [0016] and [0151] of
Leach do not teach the “direct use” of curved arcs when building curved
arcs. Id. at 13, 14. Appellant also contends that in Leach’s use of a cubic
spline equation to render a “‘curve,’” a true “‘arc’” is not “initially used” in
the process of approximating a curve. Id. at 14. Appellant further contends
that the “direct use” of curved arcs is precluded by Leach’s teachings,
because they involve the smoothing of rectangular segments. Id. at 15.
Appellant also contends that “Leach, at best, teaches defining a track
section that approximates an arc.” Reply Br. 3. Appellant contends that the
track section shown in Figure 19 of Leach is “‘defined’” by multiple straight
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line sections, and then subsequently “‘refined’” with cubic interpretation
techniques. Id. at 3. According to Appellant, the Examiner improperly
construed “defining” to mean “‘defining and then subsequently refining.’”
Id. at 4. Appellant also contends that “[d]efining via the direct use of curved
arc sections is not the identical invention as defining via plural straight
segments and then subsequently refining to approximate a curved section.”
Id. at 3-4.
Appellant’s contentions regarding the “direct use” of curved arc
sections and the meaning of the claim term “defining” are also not
persuasive. Claim 1 recites “defining . . . a curved outer arc and an inner
arc.” Claim 1 does not recite that only “curved arcs” (as opposed to straight
segments) are to be “directly used” in “defining” the claimed “curved outer
arc” and “inner arc.” Appellant appears to contend that “defining” should be
construed to distinguish over Leach’s disclosed techniques which generate
“smooth curves,” as the Examiner noted supra. Ans. 4, 7 (citing Leach,
para. [0156]). Claim 1 does not specify how the “defining” of the “curved
inner arc” and “inner arc” is achieved using the computer. Nor does
Appellant direct us to any definition of “defining” in the Specification, or to
any other disclosure contained therein, that precludes the Examiner’s
construction of “defining” as encompassing Leach’s techniques for
producing “smooth curves.” Even if Leach teaches the use of “straight track
sections” to form a track section, and also “refining” the track section to
increase its smoothness, Appellant has not provided any persuasive reason
why the claim term “defining” should be construed to distinguish the
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claimed method from Leach’s method, which forms “a curved outer arc and
an inner arc,” as discussed supra.3
In view of the above, Appellant has not apprised us of any error in the
Examiner’s rejection of claim 1. Thus, we sustain the rejection of claim 1,
as well as claims 2, 6-8, 14-16, 20, and 23-28.
Claims 20 and 23-28
Claims 20 and 23-28 depend from independent claim 1, 14, or 15.
Claims 20, 25, and 27 each recite the limitation “a plurality of straight
track sections are defined, each said straight track section being defined by a
length and a width.” In the rejection, the Examiner referenced Figures 6 and
8 of Leach. Ans. 4. These figures illustrate track configurations that include
straight track sections, which sections are “defined by a length and a width,”
as claimed. Appellant does not provide any specific argument apprising us
of error in the Examiner’s finding that Leach meets each of the limitations of
claims 20, 25, and 27. App. Br. 18. Hence, we sustain the rejection of these
claims.
Claim 23 recites the limitation “each of the outer arc, the inner arc,
and the curved arc track section is not defined using a plurality of straight
track sections.” Emphasis added. Claims 24, 26, and 28 also recite similar
limitations. As discussed supra, the Examiner found that Leach discloses
methods for generating tracks that use line segments, which form “straight

3 As discussed infra, claim 23, which depends from claim 1, recites the
limitation “each of the outer arc, the inner arc, and the curved arc track
section is not defined using a plurality of straight track sections.” Emphasis
added. Accordingly, a construction of “defining” in claim 1 that excludes
use of straight track sections to define the outer arc and inner arc would
appear to be inconsistent with claim 23.
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line sections.” We agree with Appellant that the Examiner did not identify
any disclosure in Leach that supports the rejection of claims 23, 24, 26, and
28. App. Br. 18. Hence, we do not sustain the rejection of these claims.

Rejection under 35 U.S.C. § 103(a)
Claim 5 depends from claim 1 and recites “the splines are one-
dimensional Hermite Splines.” The Examiner found that Leach does not
disclose this limitation, but found that Hermite Splines are inherently
known. Ans. 6. The Examiner concluded that it would have been obvious
to one of ordinary skill in the art to utilize Hermite Splines “to come up with
a faster process of generating continuous graphical curves thus enhance [sic]
the reality of the game.” Id.
Appellant contends the Examiner did not establish that Leach
discloses the use of Hermite Splines. App. Br. 18-19. We agree. The
Examiner did not provide any other evidence to show that Hermite Splines
are known in the art.
We also agree with Appellant that the Examiner did not provide
evidence to support the articulated rationale for utilizing Hermite Splines in
Leach. Id. at 19-20. In view of the record before us, we have insufficient
information to be able to determine whether the Examiner’s modification of
Leach would necessarily produce “a faster process of generating continuous
graphical curves” and “enhance the reality of the game.” Absent this
information, we find the Examiner’s reasoning to be speculative, and thus,
insufficient to support the rejection.
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Accordingly, we find that the Examiner did not articulate an adequate
reason with rational underpinning for modifying Leach to meet the
limitations of claim 5. We do not sustain the rejection of claim 5.

DECISION
We AFFIRM the rejection of claims 1, 2, 6-8, 14-16, 20, 25, and 27,
and REVERSE the rejection of claims 5, 23, 24, 26, and 28.
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-IN-PART

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