Ex Parte Smith et al

Board of Patent Appeals and Interferences

Jan 30, 2012

10764995 (B.P.A.I. Jan. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PHILIP STEPHEN SMITH,
EZRA CHRISTOPHER MACKENNA, DONALD T. BUSH,
and DAYMON B. SAVAGE
____________

Appeal 2009-013504
Application 10/764,995
Technology Center 3700
____________

Before LINDA E. HORNER, GAY ANN SPAHN, and
MICHAEL C. ASTORINO, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision finally rejecting claims 1-17. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b). We Affirm-in-part.
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REJECTIONS
The following rejections are before us for review:
claims 1-16 under 35 U.S.C. § 103(a) as being unpatentable
over Toyoda (US 2004/0063482 A1, pub. Apr. 1, 2004) and Reynolds
(US 2002/0147987 A1, pub. Oct. 10, 2002);
claim 17 under § 103(a) as being unpatentable over Toyoda,
Reynolds, and Hazzard (US 6,731,416 B2, iss. May 4, 2004); and
claims 1-17 under the Non-Statutory Ground of Obviousness-
Type Double Patenting over at least claim 75 of US Application
10/910,713.

CLAIMED SUBJECT MATTER
Claims 1-3 are independent claims. Claim 1 is representative of the
subject matter on appeal and recites:
1. An automated wagering gaming event system comprising:
at least two distinct video displays, a first video display
for showing a dealer in a card game and at least a second video
display showing playing cards to individual players;
at least one processor for enabling play of the wagering
gaming event;
multiple player positions to enable multiple players to
play the game;
wherein the at least one processor is connected to at least
two distinct feeds of video information so that the processor is
fed the at least two different multiple video images and the at
least one processor contains software that merges the at least
two multiple video images to form a composite image of a
dealer against a background,
at least two separate feeds of video image information
connected to sources of different video content that are fed into
the processor and are merged in the at least one processor and
then displayed on the first video display;
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wherein the background comprises at least one dynamic
image.

ANALYSIS
At the outset, we acknowledge the Appellants filed a Reply Brief on
March 2, 2009. However, the Examiner has not entered the Reply Brief.
See Advisory Action After the Filing of an Appeal Brief, mailed May 26,
2009. Thus, the Appellants’ Reply Brief has not been considered in this
decision. See 37 C.F.R. § 41.41(b).
Claims 1 and 7
Claim 1 calls for a processor programmed with an instruction to
display on a first video display an image and a dynamic background image
merged together. The Appellants have defined the term “dynamic” as “an
image that is changing with time and is not a still image.” Spec. 49: 26, 27.
For example, a dynamic image “can be a live feed from a video camera, or a
prerecorded series of images that change over time.” Spec. 49: 27, 28.
Toyoda discloses a game machine and program including a display
control device 200 having a central processing unit 206 and multiple
displays 32, 42, 52A-D, where each display has a background image C1 and
one or more foreground images. Toyoda, paras. [0061], [0063], [0064],
[0106], [0109], [0118], figs. 3, 4. In particular, Toyoda discloses that its
system merges the background image with a foreground image on each
display by positioning read image data of image C1 in video RAM 214 that
correspond to the positions at which background images are to be displayed
on display devices 32, 42, and 52A-D. Toyoda, para. [0118]. Each display
has different foreground images, for example, animated characters, e.g., a
card dealer, or player image data from image taking devices 44A-D. See
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Toyoda, paras. [0070], [0112]-[0114], [0117]-[0119], [0122], figs. 13A-13C.
However, Toyoda does not disclose that processor 206 has an instruction for
displaying a dynamic background image, as called for by claim 1. See Ans.
5-6, 17, 20. The Examiner relies on Reynolds’ disclosure to teach this
deficiency with regard to claim 1. See id. The Examiner concludes that:
[i]t would have been obvious to one of ordinary
skill in the art at the time of invention to have
incorporated the teachings of Reynolds et al, into
the composite video gaming system of Toyoda in
order to provide a composite dealer image on a
background reflective of the geographical location
of the gaming device.
Ans. 5-6.
The Appellants contend that Reynolds “does not show dynamic
background images combined in a gaming apparatus.” App. Br. 18. The
Examiner finds that Reynolds’ paragraph [0007] teaches “that composite
images may be used in interactive games.” Ans. 5. In this paragraph
Reynolds discloses it may be desirable to combine various interactive feeds,
including “interactive games that can be combined as overlays with standard
video feeds.” (Emphasis added). An “overlay” is understood as “[t]he
ability to superimpose1 computer graphics over a live or recorded video
signal and store the resulting video image on video tape.” NEWTON’S
TELECOM DICTIONARY 543 (18th ed. 2002). Combining a standard video
feed with an interactive game as an overlay, as taught in Reynolds, suggests
the standard video feed is a dynamic background image. As such, the

1 Superimpose is understood as “to impose, place, or set over, above, or on
something else.” (DICTIONARY.COM UNABRIDGED,
http://dictionary.reference.com/browse/superimpose (last visited Jan. 29,
2012)(“superimpose,” def. 1)).
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Examiner’s findings with respect to Reynolds’ disclosure correspond to an
instruction for displaying a dynamic background image as called for by
claim 1. In view of the foregoing, the Examiner’s conclusion of obviousness
is supported by rational underpinning. See Ans. 5-6, KSR Int'l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007). Thus we sustain the rejections of
claim 1. The Appellants do not offer separate arguments for dependent
claim 7. As such, we also sustain the rejection of claim 7.
Claims 11-17
The Appellants argue separately for claims 11-16 (App. Br. 19), and
provide more specific arguments for claims 12-14. App. Br. 18. We select
claim 12 as the representative claim from both groups. As such, claims 11
and 13-16 stand or fall with claim 12. See 37 C.F.R. § 41.37(c)(1)(vii).
Claim 12 recites “each player position has an individual player
processing board dedicated to that position.” The Examiner finds that
Toyoda teaches a “singular processor performs the functions of a processor
at each player position, a common dealer processor, and a main processor.”
Ans. 6. The Examiner reasons that it would have been obvious to separate a
singular processor into multiple processors “to offer system redundancy
and/or provide a system wherein multiple user terminals could be added
without being limited by the central CPUs processing ability.” Ans. 6-7, 24.
The Appellants contend that Toyoda does not disclose and Reynolds
does not teach the structural limitations of claim 12. App. Br. 18. The
Appellants also contend that it would not have been obvious to provide
separate processors to merge “video feeds to provide the dealer background
on the first display device and displaying a background comprising at least
one dynamic image.” App. Br. 19. The Appellants’ contentions are not
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persuasive because neither contention cogently explains why it would not
have been obvious to separate a single processor into multiple processors as
determined by the Examiner. Thus, we sustain the rejection of claim 12, as
well as claims 11 and 13-16.
The Appellants argue separately for claim 17, but merely rely on
arguments presented for the claims from which 17 depends, i.e., claims 1
and 11. App. Br. 19. For the reasons provided above, we sustain the
rejection of claim 17 as unpatentable over Toyoda, Reynolds, and Hazzard.
Claims 2, 5, and 8
Claim 2 calls for a processor programmed with an instruction to
display on a first video display a merged image including an image and a
live video image from a video camera as a background image.
The Examiner finds that Toyoda displays a live feed via image taking
devices 44A-D. Ans. 5, 20. Toyoda suggests that image taking devices
44A-D provide live video feeds that are displayed, via processor 206, as a
foreground image. Toyoda, paras. [0070], [0113], [0122]. The Examiner
modifies Toyoda’s teachings with “the teachings of Reynolds to provide the
live video images as a feed for the background images of the dealer on
element [display] 32 of Toyoda.” Ans. 20.
The Appellants correctly contend Reynolds does not teach a
background image having a live video image from a live video camera. See
App. Br. 17. Reynolds discloses it may be desirable to combine interactive
games as an overlay with standard video feeds, but Reynolds does not
specify that the standard video feed is a live video feed. See Reynolds, para.
[0007]. Additionally, the Appellants point out that Reynolds discloses a
video signal with respect to where people live, not a live video feed. App.
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Br. 17. Thus we do not sustain the rejection of claim 2, or dependent claims
5 and 8.
Claims 3, 4, 6, 9, and 10
Claim 3 calls for a processor programmed with an instruction to
merge at least three different sets of video images to form a composite image
of a dealer against a background, where one set of video image data is a
mask layer and another is an auxiliary dynamic background image.
In addition to the arguments provided above the Appellants
additionally argue for claim 3, that “[n]either Toyoda nor Reynolds has been
cited as showing the combination of the THREE IMAGES (as recited in
the claim) in the first video display to combine the dealer image, the mask
image and the dynamic background image.” App. Br. 14; see also App. Br.
18.
The Examiner finds Toyoda teaches a merging a first dealer image
and a second background image, which has been modified to be dynamic
background image. Ans. 23. The Examiner also finds that Toyoda’s display
includes a masking image that serves as a third image. Ans. 23-24. With
regard to the “auxiliary” dynamic background image as recited in claim 3,
the Specification does not make clear if an “auxiliary” dynamic background
image is different than a dynamic background image. In addition, the
Appellants’ identify the same section in the Specification, page 49, line 22
through page 50, line 2 as support for a dynamic background image as called
for in claim 1 and the “auxiliary dynamic background image” as called for in
claim 3. App. Br. 7, 8. For the purposes of this appeal, we treat dynamic
background image as called for in claim 1 and “auxiliary dynamic
background image” as recited in claim 3 as having no discernible difference.
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In view of the foregoing, the Examiner’s conclusion of obviousness is
supported by rational underpinning. Thus, we sustain the rejection of claim
3. The Appellants do not offer separate arguments for dependent claims 4,
6, 9, and 10. As such, we also sustain the rejection of claim 4, 6, 9, and 10.
Rejection of claims 1-17 under the Non-Statutory Ground of Obviousness-
Type Double Patenting over at least claim 75 of U.S. Application
10/910,713
We dismiss as moot the Examiner’s provisional obviousness-type
double patenting rejection of claims 1-17 because US Application
10/910,713 is abandoned.
The dismissal of this rejection does not remove the terminal
disclaimer filed August 13, 2007 from this patent application. Additionally,
the dismissal of this rejection must not be understood as a comment on the
terminal disclaimer, including: the petition to remove the terminal disclaimer
filed August 4, 2008; the subsequent dismissal of the petition mailed
October 14, 2008; or whether or not the terminal disclaimer was reviewed
and accepted (see Final Off. Act., mailed Apr. 28, 2008, p. 2).

DECISION
We AFFIRM the rejections of: claims 1, 3, 4, 6, 7, and 9-16 under 35
U.S.C. § 103(a) as being unpatentable over Toyoda and Reynolds; and claim
17 under 35 U.S.C. § 103(a) as being unpatentable over Toyoda, Reynolds,
and Hazzard.
We REVERSE the rejection of claims 2, 5, and 8 under 35 U.S.C.
§ 103(a) as being unpatentable over Toyoda and Reynolds.
We DISMISS the rejection of claims 1-17 under the Non-Statutory
Ground of Obviousness-Type Double Patenting.
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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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