10289124 (P.T.A.B. May. 28, 2013)

Ex Parte Rosedale et al

Patent Trial and Appeal BoardMay 28, 2013

10289124 (P.T.A.B. May. 28, 2013)

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. 10/289,124 11/05/2002 Philip E. Rosedale LIND-01001US0 9146 7590 05/28/2013 VIERRA MAGEN MARCUS & DENIRO LLP SUITE 2500 575 MARKET STREET SAN FRANCISCO, CA 94105 EXAMINER SAXENA, AKASH ART UNIT PAPER NUMBER 2128 MAIL DATE DELIVERY MODE 05/28/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte PHILIP E. ROSEDALE, CORY R. ONDREJKA, and ANDREW L. MEADOWS1 ____________________ Appeal 2010-009720 Application 10/289,124 Technology Center 2100 ____________________ Before KALYAN K. DESHPANDE, JOHNNY A. KUMAR, and LARRY J. HUME, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 96-127. Appellants have previously canceled claims 1- 95 and 121-127, leaving claims 96-120 subject to this Appeal. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. We affirm the rejection of claims 96-114, 116-118, and 120, and we reverse the rejections of claims 115 and 119. 1 The Real Party in Interest is Linden Research, Inc. (App. Br. 1.) Appeal 2010-009720 Application 10/289,124 2 STATEMENT OF THE CASE 2 The Invention Appellants’ invention relates to a system and method for distributed simulation in which different simulation servers simulate different regions of a simulation space. Spec. p. 2, ll. 21-27. Exemplary Claims Claims 96, 103, 105, 111, 115, and 117 are exemplary claims representing various aspects of the invention which are reproduced below (emphases added to disputed limitations): 96. A system for simulating, comprising: a plurality of computing devices in communication with a network, at least a subset of the plurality of computing devices perform a continuous distributed simulation of a space such that each computing device of the subset simulates a different portion of the space, the plurality of computing devices includes a first computing device; and an additional computing device in communication with the network, the additional computing device is initially not performing the continuous distributed simulation while the subset of the plurality of computing devices perform the continuous distributed simulation, the additional computing device communicates with the first computing device regarding an assignment of a particular portion of the space during the continuous distributed simulation, in response to communicating with the first computing device regarding the 2 Our decision refers to Appellants’ Appeal Brief (“App. Br.,” filed Feb. 9, 2010); Reply Brief (“Reply Br.,” filed June 28, 2010); Examiner’s Answer (“Ans.,” mailed Apr. 29, 2010); Final Office Action (“FOA,” mailed Apr. 10, 2009); and the original Specification (“Spec.,” filed Nov. 5, 2002). Appeal 2010-009720 Application 10/289,124 3 assignment the additional computing device joins the subset of the plurality of computing devices in performing the continuous distributed simulation of the space during the continuous distributed simulation of the space, the additional computing device simulates the particular portion of the space. 103. The method of claim 102, further comprising: backing up the simulation state information to the neighbor computing device prior to assigning the particular portion of the space to the additional computing device and during the simulation. 105. A machine implemented method of simulating, comprising: performing a continuous distributed simulation of a space using a plurality of computing devices connected to a network, each computing device of the plurality simulates a different region of the space, performing the continuous distributed simulation includes reporting about the simulation to one or more users; determining that a trigger event occurred; in response to the trigger event, determining whether a new region should be added to the space; adding an additional computing device and the new region to the continuous distributed simulation while performing the continuous distributed simulation, if it was determined that the new region should be added to the space; and simulating the new region with the additional computing device as part of the continuous distributed simulation. Appeal 2010-009720 Application 10/289,124 4 111. A machine implemented method of simulating, comprising: performing a continuous distributed simulation of a space using a plurality of computing devices connected to a network, each computing device of the plurality simulates a different region of the space, performing the continuous distributed simulation includes reporting about the simulation to a user computer device; determining whether an item has changed; if the item has changed, determining whether a particular change for the item would be perceptible on the user computing device based on one or more properties of the item in the space and a physical property of a user interface on the user computing device; and transmitting data about the change to the user computing device if it was determined that the particular change would be perceptible on the user computing device and not transmitting the data about the change to the user computing device if it was determined that the particular change would be not be perceptible on the user computing device. 115. The method of claim 111, wherein: the physical property of the user interface on the user computing device is display resolution. Prior Art The Examiner relies upon the following prior art in rejecting the claims on appeal: Ing 6,746,332 B1 Jun. 8, 2004 Ronneburg 6,859,830 B1 Feb. 22, 2005 “Locales: Supporting Large Multi-user Virtual Environments”, John N. Appeal 2010-009720 Application 10/289,124 5 Barrus, IEEE, Nov. 1996 (hereinafter “Barrus”). “A scalable architecture for supporting interactive games on the internet”, Wentong Cai et al., IEEE, 2002 (hereinafter “Cai”). “A Load Balancing Algorithm For a Distributed Multimedia Game Server Architecture,” Dugki Min et al., IEEE, 1999 (hereinafter “Dugki”). Rejections on Appeal 1. Claims 111-112 and 114-116 stand rejected under 35 U.S.C. § 102(e) as being anticipated by Ing. Ans. 4. 2. Claims 96-102, 105, 107, 108, 117-120 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ing and Ronneburg. Ans. 8. 3. Claims 103-104 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ing, Ronneburg, and Dugki. Ans. 13. 4. Claims 106 and 109-110 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ing, Ronneburg, and Barrus. Ans. 15. 5. Claim 113 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ing and Cai. Ans. 18. ISSUES AND ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments that the Examiner has erred. We disagree with Appellants’ conclusions with respect to claims 96-114, 116-118, and 120, and we adopt Appeal 2010-009720 Application 10/289,124 6 as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons and rebuttals set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Arguments. However, we agree with Appellants’ conclusions with respect to claims 115 and 119, and disagree with the Examiner’s findings regarding these claims. We highlight and address specific findings and arguments regarding claims 96, 103, 105, 111, and 115 for emphasis as follows. 1. Anticipation Rejection of Claims 111-114, and 116 Issue 1 Appellants argue (App. Br. 10-11; Reply Br. 3-5) that the Examiner’s rejection of claim 111 under 35 U.S.C. § 102(e) as being anticipated by Ing is in error. These contentions present us with the following issue: Did the Examiner err in finding that Ing anticipates Appellants’ claimed machine implemented method of simulating, particularly that Ing discloses “determining whether an item has changed; if the item has changed, determining whether a particular change for the item would be perceptible on the user computing device based on one or more properties of the item in the space and a physical property of a user interface on the user computing device; and transmitting data about the change to the user computing device if it was determined that the particular change would be perceptible on the user computing device and not transmitting the data about the change to the user computing device if it was determined that the particular change would be not be perceptible on the user computing device,” as recited in claim 111? Appeal 2010-009720 Application 10/289,124 7 Analysis Appellants contend that claim 111 distinguishes over Ing for at least two reasons: (1) Ing “always transmits the updates at a frequency based on distance,” and does not ascertain whether a change for a simulated item would be perceptible on the user’s computing device, as required by claim 111. App. Br. 11. (2) Appellants also contend that “Ing . . . determines frequency of updates based on distance in the virtual world, while claim 111 recites that the determination is based, at least in part, on ‘a physical property of a user interface on the user computing device.’” Id. With respect to contention (1), the Examiner asserts that the update frequency is not claimed by Appellants, nor does update frequency have any bearing on an updating message not being transmitted. The Examiner also finds that Ing specifically discloses that an updating message is sent to the user so that the user’s avatar can perceive objects and their changes, thus meeting the disputed limitation. Ans. 20 (citing Ing col. 10:11-14). In response to the Examiner’s findings, supra, Appellants contend that “Ing . . . does not disclose determining whether a change is perceptible and makes no mention of making such a determination based on a physical property of a user interface on the user computing device . . . [such that] claims 111, 112 and 114 are patentable over the cited prior art.” Reply Br. 5. With regard to Appellants’ contention (1), we agree with the Examiner’s findings cited above, because we find that Ing discloses “[m]essages may be sent over the communication channel, the messages Appeal 2010-009720 Application 10/289,124 8 having data regarding a change of position for the element as perceived by the user through the view frustum from the point of reference.” Ing col. 10:11-14. With regard to Appellants’ contention (2), above, the Examiner finds that Ing discloses determining the rendering capability of the user interface to reduce choppiness to provide a pleasing refresh rate chosen according to the visual display, and thereby discloses the recitation in claim 111 of “a physical property of the user interface device”. Ans. 21 (citing Ing col. 22:65 - col.23:7; and col. 25:11-25). In response to this particular finding by the Examiner, Appellants argue that Ing teaches a refresh rate, but that this refresh rate is not a physical property of a user interface on the user computing device, but instead is “the number of times per second that the world server complex 10 sends an update message to a player's computer.” Reply Br. 4 (citing Ing. col. 22:65 – col. 23:7). We disagree with Appellants’ contentions in this regard because Ing’s disclosure of the rendering capability of the user interface and that a refresh rate is chosen according to the visual display and its rendering capability meets the recitation of “a physical property of the user interface device,” as interpreted by the Examiner (Ans. 21), because the user interface and refresh rate are physical properties of a device.3 We further note that Ing describes “some players may use a modem to dial into the Internet to connect to the 3 We note that Appellants’ Specification does not provide any special definition of “physical property of a user interface” or any other definition or discussion that would render our claim construction unreasonable. Appeal 2010-009720 Application 10/289,124 9 game server . . . [which] may be limited in connection bandwidth for certain information updating functions . . . [but t]he present invention accounts for this situation.” Ing. col. 22:48-52. User connection bandwidth is also a physical property of a user interface device. Accordingly, Appellants have not persuaded us of any reversible error in the Examiner’s characterization of the cited art and related claim construction. Therefore, we sustain the Examiner’s anticipation rejection of claim 111. As Appellants have not provided separate, substantive arguments with respect to dependent claims 112-114, and 116, we similarly sustain the Examiner’s rejection of these claims under 35 U.S.C. § 102(e). 2. Rejection of Claims 115 and 119 Issue 2 Appellants argue (App. Br. 11-12; Reply Br. 5) that the Examiner’s rejection of claim 115 under 35 U.S.C. § 102(e) as being anticipated by Ing is in error. These contentions present us with the following issue: Did the Examiner err in finding that Appellants’ claimed method is anticipated by Ing, particularly, that Ing discloses “the physical property of the user interface on the user computing device is display resolution,” as recited in claim 115? Analysis Appellants contend that claim 115 recites that the decision about whether to transmit data is based on the resolution of the user’s display, and that this concept is not disclosed by Ing, because the Examiner’s citation Appeal 2010-009720 Application 10/289,124 10 (Ing col. 22:65 – col. 23:7) does not mention the resolution of the user’s display, but instead refers to a player’s connection bandwidth budget restriction. App. Br. 11-12 (citing Ans. 6). In response to the Examiner’s findings regarding claim 115, Appellants argue that “[i]n the Examiner's Answer, the Examiner fails to discuss the resolution of the user’s display . . . [but i]nstead . . . makes allegations about a pleasing visual display, refresh rate of the server and use of bandwidth.” Reply Br. 5. We agree with Appellants’ contentions, supra, because we find no disclosure, teaching, or suggestion in Ing regarding display resolution, as recited in claim 115, and as commensurately recited in dependent claim 119. Accordingly, Appellants have provided arguments sufficient to persuade us of reversible error in the Examiner’s characterization of the cited art and related claim construction such that we cannot sustain the Examiner’s rejections of claims 115 and 119. 3. Unpatentability Rejection of Claims 96-102, 117, 118, and 120 Issue 3 Appellants argue (App. Br. 12-13; Reply Br. 6-7) that the Examiner’s rejection of claim 96 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ing and Ronneburg is in error. These contentions present us with the following issue: Did the Examiner err in finding that Appellant’s claimed system for simulating is rendered unpatentable over the combination of Ing and Ronneburg, particularly that the Appeal 2010-009720 Application 10/289,124 11 combination teaches or suggests “an additional computing device . . . [which] in response to communicating with the first computing device regarding the assignment, the additional computing device joins the subset of the plurality of computing devices in performing the continuous distributed simulation of the space during the continuous distributed simulation of the space,” as recited in claim 96? Analysis With respect to independent claim 96, Appellants argue “Ronneburg does not explicitly teach that the computing devices are performing continuous distributed simulation of the space, and the additional computing device simulates the particular portion of the space,” (App. Br. 13) and Appellants argue that, even if Ronneburg is combined with Ing, “there is no teaching of a new server joining a simulation during the simulation.” Id. (emphasis in original). Appellants additionally argue that, because Ing suggests that load balancing be used rather than have a new server join the simulation, Ing teaches away from the claimed invention. Id. In response, the Examiner points out that the rejection is for obviousness under 35 U.S.C. § 103, but that Appellants’ response is merely a piecemeal analysis of each reference. Ans. 24. The Examiner reiterates that Ing teaches continuous distributed simulation on multiple computing devices (Ans. 25, citing Ing Fig. 1), and Ronneburg is relied upon as teaching adding and removing computing devices, e.g., servers, based on a triggering event, e.g., such as a server being unresponsive, and adding a new server instead. Ans. 25 (citing Ronneburg col. 5:14-52; col. 7:25 – col. 8:56). Ronneburg’s servers are active and considered “live,” and server management is based on load balancing requirements. Ans. 25 (citing Appeal 2010-009720 Application 10/289,124 12 Ronneburg Col. 3:20-39). The Examiner also finds that the particular applications that Ronneburg’s servers are running are not relevant to the obviousness analysis because Ing is relied upon for teaching that the application being run is the continuous distributed simulation running across multiple servers. Ans. 25 (citing Ing Fig.1, elements 22-26 area servers). We agree with the Examiner because Appellants’ challenge to the references individually is not convincing of error in the Examiner’s position. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“one cannot show nonobviousness by attacking references individually where, as here, the rejections are based on combinations of references” (citations omitted)). In the present case, the Examiner found that that Ronneburg teaches the addition of a new server in response to a load balancing requirement, and that Ing also teaches load balancing such that a person with skill in the art could use Ronneburg’s method as means to achieve load balancing in a continuous distributed simulation. Ans. 25 (citing Ing col. 13:1-7). As such, Appellants’ contention that Ing fails to describe this feature is not persuasive because the Examiner has relied on the teachings of Ronneburg to teach this limitation. Appellants do not address the Examiner’s specific findings which rely upon Ronneburg for teaching the adding of an additional computing device. Ans. 9 (citing Ronneburg col. 5:14-51). Appellants argue (App. Br. 14) that Ing teaches away from combination with Ronneburg because Ing teaches distributing the load among existing servers, and does not teach adding an additional computing device. We disagree with Appellants. “A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be Appeal 2010-009720 Application 10/289,124 13 discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant.” Ricoh Co., Ltd. v. Quanta Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (citations omitted). Appellants do not provide any evidence or argument that Ing disparages or otherwise precludes adding a new computing device (e.g., an additional server) to the network configuration. As such, we are not persuaded by Appellants’ argument. Accordingly, Appellants have not persuaded us of any reversible error in the Examiner’s characterization of the cited art and related claim construction. Therefore, we sustain the Examiner’s unpatentability rejection of representative claim 96. As Appellants have not provided separate arguments with respect to independent claim 100, or dependent claims 97-99 and 101-102, we similarly sustain the Examiner’s rejection of these claims under 35 U.S.C. § 103(a). With respect to claims 117-120, Appellants argue that these claims “are patentable over the cited prior art for the same reasons as claims 111, 114-116 . . . [s]pecifically, Ing . . . does not teach all of the limitations of claim 117, and Ronneburg does not disclose the limitations missing in Ing.” App. Br. 12. We accordingly do not find error in the Examiner’s rejection for the same reasons discussed supra. 4. Unpatentability Rejection of Claims 105-110 Issue 4 Appellants argue (App. Br. 14; Reply Br. 7) that the Examiner’s rejection of claim 105 under 35 U.S.C. § 103(a) as being unpatentable over Appeal 2010-009720 Application 10/289,124 14 the combination of Ing and Ronneburg is in error. These contentions present us with the following issue: Did the Examiner err in finding that Appellant’s claimed method is unpatentable over the combination of Ing and Ronneburg because the combination teaches or suggests, “in response to [a] trigger event, determining whether a new region should be added to the space; [and] adding an additional computing device and the new region to the continuous distributed simulation while performing the continuous distributed simulation, if it was determined that the new region should be added to the space,” as recited in claim 105? Analysis Appellants admit that Ing describes a triggering event when the number of avatars overrun the transactional capability of one area server, but contends that the response to the trigger is not “adding an additional computing device and the new region to the continuous distributed simulation while performing the continuous distributed simulation,” as recited in claim 105. App. Br. 14 (citing Ing col. 13:3-8). Appellants contend that Ing instead teaches distribution of the load among the existing servers. Id. In response to Appellants’ contentions, the Examiner responds that Ing teaches a trigger requiring backup and dynamic load balancing, and Ronneburg teaches that server parameters, e.g., for load balancing, can change by adding a new server to handle the load. Ans. 27 (citing Ronneburg co1. 5:14-52). Appellants respond in the Reply Brief that “[n]either prior art reference teaches to add a new region to the simulation space.” Reply Br. 7. Appeal 2010-009720 Application 10/289,124 15 We disagree with Appellants because the portion of Ing cited by the Examiner (Ing col. 12 – col. 13: 8) teaches, with reference to Figure 1, that each of the virtual worlds are administered as a separate world complex 7-10 (Ing col. 12:7-8); that each area server is programmed within each world server complex to govern and administer a particular geographic or physical area within the virtual reality world (Ing col. 12:20-24); and that the game system is organized among area servers 22-26, where each server administers a unique, non-overlapping geographical sector within the virtual reality world which provides advantages over other types of load balancing techniques (Ing col. 12:38-43). Since Ing teaches that each region of the virtual reality world is administered by a dedicated server for load-balancing, and Ronneburg teaches adding an additional server as one way of dealing with load balancing, we find that it that the combination of Ing and Ronneburg suggests “adding an additional computing device and the new region to the continuous distributed simulation while performing the continuous distributed simulation.” Accordingly, Appellants have not persuaded us of any reversible error in the Examiner’s characterization of the cited art and related claim construction. Therefore, we sustain the Examiner’s unpatentability rejection of claim 105. As Appellants have not provided separate arguments with respect to independent claim 108 or dependent claim 107 (App. Br. 14), we similarly sustain the Examiner’s rejection of these claims under 35 U.S.C. § 103(a). Appeal 2010-009720 Application 10/289,124 16 Further, while Appellants raised additional arguments for patentability of dependent claims 106 and 109-110 over the combination of Ing, Ronneburg, and Barrus (App. Br. 16), we find that the Examiner has rebutted each of those arguments in the Answer. Ans. 28-29. In addition, we find that Appellants’ subsequent arguments (Reply Br. 8-9) do not specifically address the Examiner’s findings (Ans. 28-29) regarding Barrus’ teaching of “interpolating” as maintaining or matching continuity between two simulation spaces. Therefore, we adopt the Examiner’s findings and underlying reasoning, and reach the same conclusions. Consequently, having found no reversible error in the Examiner’s rejections of claims 106 and 109-110, and we sustain the Examiner’s rejection of these claims. 5. Unpatentability Rejection of Claims 103-104 Issue 5 Appellants argue (App. Br. 14-15; Reply Br. 8) that the Examiner’s rejection of claim 103 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Ing, Ronneburg, and Dughi is in error. These contentions present us with the following issue: Did the Examiner err in finding that Appellants’ claimed method is unpatentable over the combination of Ing, Ronneburg, and Dughi, particularly that the combination teaches or suggests “backing up the simulation state information to the neighbor computing device prior to assigning the particular portion of the space to the additional computing device and during the simulation,” as recited in claim 103? Appeal 2010-009720 Application 10/289,124 17 Analysis Appellants contend that Dugki does not teach backing up, and specifically does not teach backing up to a neighbor prior to assigning the particular portion to an additional computing device. Instead, Appellants argue that Dugki teaches “dynamically relocate[ing] the partition lines” in response to server overload after sending a portion of simulation responsibilities and related data to a neighbor that is not overloaded. App. Br. 14-15 (citing Dugki, p. 884). Appellants further contend that sending simulation responsibilities is different than “backing up the simulation state information to the neighbor computing device prior to assigning the particular portion of the space to the additional computing device and during the simulation,” as recited in claim 103. App. Br. 15. In response, the Examiner finds that “Dugki teaches backing up the simulation state information to the neighbor computing device prior to assigning the particular portion of the space to the additional computing device and during the simulation,” and that the simulation state information includes sharing node information with neighboring nodes in case of overload for use by another server/node. Ans. 13-14 (citing Dugki p. 884, § 3.2). We agree with the Examiner’s finding that Dugki’s teaching of migrating/assigning the particular portion to an additional computing device involves sending some of its simulation responsibilities and the necessary data to the neighbor. App. Br. 27. We agree with the Examiner because such migration of simulation responsibilities includes transmission to and storage of simulation state information by the neighbor computing device Appeal 2010-009720 Application 10/289,124 18 before the neighboring device can perform simulation (Id.), since backing up simulation data on the target device would be done prior to allowing the neighboring device to perform simulation. Accordingly, Appellants have not persuaded us of any reversible error in the Examiner’s characterization of the cited art and related claim construction. Therefore, we sustain the Examiner’s unpatentability rejection of claim 103. Further, while Appellants raised an additional argument for patentability of dependent claim 104 over the combination of Ing, Ronneburg, and Dugki (App. Br. 15-16), we find that the Examiner has rebutted this argument in the Answer by a preponderance of the evidence and accordingly adopt the Examiner’s findings and conclusions as our own. Ans. 28. We therefore sustain the rejection of claim 104. CONCLUSIONS (1) The Examiner did not err with respect to the various rejections of claims 96-114, 116-118, and 120, and the rejections are sustained. (2) The Examiner erred with respect to the various rejections of claims 115 and 119, and the rejections are not sustained. DECISION The decision of the Examiner to reject claims 96-114, 116-118, and 120 is affirmed. The decision of the Examiner to reject claims 115 and 119 is reversed. Appeal 2010-009720 Application 10/289,124 19 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv)(2011). AFFIRMED-IN-PART ke