Maxx Media Group, LLC

Patent Trials and Appeals Board

May 27, 2021

2019005965 (P.T.A.B. May. 27, 2021)

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.
15/482,699 04/07/2017 Richard S. Freeman Freeman-16 7749
32132 7590 05/27/2021
LAMORTE & ASSOCIATES P.C.
P.O. BOX 434
YARDLEY, PA 19067
EXAMINER
NGUYEN, PHUNG HOANG JOSEPH
ART UNIT PAPER NUMBER
2651
NOTIFICATION DATE DELIVERY MODE
05/27/2021 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):
mail@uspatlaw.com
malamorte@verizon.net
uspatlaw1@verizon.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICHARD S. FREEMAN
____________

Appeal 2019-005965
Application 15/482,699
Technology Center 2600
____________

Before CAROLYN D. THOMAS, MICHAEL J. STRAUSS, and
JEREMY J. CURCURI, Administrative Patent Judges.

THOMAS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7 and 9–20. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as Maxx
Media Group LLC. Appeal Br. 2.
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The present invention relates generally to providing a virtual avatar to
accompany audio signals being broadcast from an electronic device that has
a display screen. See Spec., Abstr.
Claim 1 is illustrative:
1. A method of providing a virtual avatar to
accompany audio signals being broadcast from an electronic
device that has a display screen, said method comprising the
steps of:
creating a virtual avatar model;
altering said virtual avatar model in response to
said audio signals;
creating a stereoscopic video file by imaging said
virtual avatar model from two virtual stereoscopic viewpoints
while said virtual avatar model is responding to said audio
signals; and
playing said stereoscopic video file on said display
screen of said electronic device, wherein said stereoscopic
video file shows an avatar image that, at least in part, appears to
a viewer viewing said screen with a stereoscopic image viewer
to be three-dimensional and to extend out from said display
screen.

Appellant appeals the following rejections:
R1. Claims 1–4, 7, 10–13, 15–17, and 20 are rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination of Yiannios (US
2012/0058747 A1, Mar. 8, 2012) and Vesely (US 2016/0203634 A1, July
14, 2016). Final Act. 2–6.
R2. Claims 5, 6, 18, and 19 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Yiannios, Vesely, and Goossens
(US 2011/0296324 A1, Dec. 1, 2011). Final Act. 7–8.
R3. Claims 9 and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Yiannios, Vesely, and Sumi (US
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2017/0085865 A1, Mar. 23, 2017). Final Act. 8–9.
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).

ANALYSIS
Regarding Yiannios, Appellant contends:
The avatar is only [three-dimensional (3D)] in that it shows
length, width and height on two dimensional display. . . . There
is no disclosure whatsoever, describing or suggesting that the
avatar is used to create a stereoscopic image. In fact, the
Yiannios publication teaches away from the present invention
by repeatedly stating that the avatar model itself is displayed on
an ordinary phone display and is viewed without any 3D
glasses or auto-stereoscopic display equipment.
Appeal Br. 8 (citing Yiannios Claim 1). Appellant further contends that
“the modification proposed by the Examiner changes the principle of
operation for the invention” of Yiannios, because “[t]here is no use of a
model that is imaged with stereoscopic cameras . . . [and] the system would
not work because the model being imaged is only two-dimensional.” Id. at
9. We disagree with Appellant.
Although Appellant contends that Yiannios repeatedly states that its
avatar model is displayed on an ordinary phone display and is viewed
without any 3D glasses or auto-stereoscopic display equipment (see Appeal
Br. 8), we cannot readily find and Appellant fails to direct our attention to
where precisely Yiannios makes such repeated statements. Instead,
Appellant merely cites to Yiannios’ claim 1 as support for this allegation.
Id. However, Yiannios’ claim 1 fails to mention not using 3D glasses and/or
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avoiding auto-stereoscopic techniques, or more importantly fails to criticize,
discredit, or otherwise discourage the use of 3D glasses and/or stereoscopic
equipment. “The prior art’s mere disclosure of more than one alternative
does not constitute a teaching away from any of these alternatives because
such disclosure does not criticize, discredit, or otherwise discourage the
solution claimed . . . .” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Furthermore, as noted by the Examiner, Yiannios discloses using 3D
images. See Ans. 11 (citing Yiannios ¶¶ 30, 53). Although Appellant
attempts to distinguish Yiannios’ 3D images from the claimed “stereoscopic
video file” and “three-dimensional” display, we highlight that the Examiner
relies upon Vesely, not Yiannios, to teach the claimed creating a
stereoscopic video file by imaging said virtual avatar model and a
stereoscopic image viewer to be three-dimensional. See Final Act. 3–4.
Therefore, it is the combined teachings of Yiannios and Vesely that the
Examiner is relying upon to teach and/or suggest the aforementioned argued
limitations.
As such, Appellant’s argument against Yiannios separately from
Vesely does not persuasively rebut the combination made by the Examiner.
One cannot show non-obviousness by attacking references individually,
where the rejections are based on combinations of references. In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413,
425–26 (CCPA 1981).
Here, Appellant’s arguments do not take into account what the
collective teachings of the prior art would have suggested to one of ordinary
skill in the art and is therefore ineffective to rebut the Examiner’s prima
facie case of obviousness. See In re Keller, 642 F.2d at 425 (“The test for
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obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference; nor is it that
the claimed invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.”) (Citations
omitted). This reasoning is applicable here.
Appellant further contends that “neither the Yiannios Publication nor
the Vesely Publication shows a system that repeatedly images a changing 3D
model that is reacting to an audio signal.” Appeal Br. 8. Once again, we
find that Appellant is arguing the reference individually because here
Appellant is improperly arguing that the claimed invention must be
expressly suggested in any one or all of the references. However, the
Examiner is using Yiannios to teach creating a virtual avatar model and
altering the same in response to audio signals (see Final Act. 2–3), and using
Vesely to teach creating a stereoscopic video file by imaging a virtual avatar
model and a three-dimensional image appearing as extending out from a
display screen. See Final Act. 3–4.
For example, Yiannios discloses “on detection of a change in voice
characteristics in said inbound voice, automatically display new avatar
images corresponding to new voice characteristics.” Yiannios ¶ 9; see also
¶ 47 (“avatar change as a result of changes in received voice pitch,
intonation, volume, expressions etc.”). In other words, Yiannios teaches an
avatar changing in response to changes in audio.
Similarly, Vesely discloses that “the 3D scene may be presented by a
. . . plurality of displays. . . . a vertical display and a horizontal display . . . a
first stereoscopic image . . . and . . . a second stereoscopic image” (Vesely
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¶ 7), “using the glasses” (id. ¶ 67), and “the menu items may be presented
with vertical projecting conveying objects extending in front of the display.”
Id. ¶ 86. In other words, Vesely teaches creating a stereoscopic file by using
two stereoscopic viewpoints whereby 3D glasses may be utilized to illustrate
objects extending out of the display.
The Examiner concludes that “it would have been obvious . . . to
incorporate the teaching of Vesely into the teaching of Yiannios for the
purpose of providing greater enhancement in communication where users
can experience friendly and realistic interaction with the devices used and
with other users.” Final Act. 4. As such we find unavailing Appellant’s
contention that “the Examiner has failed to provide any articulated
reasoning” (see Appeal Br. 9) given the aforementioned reason.
Finally, Appellant makes general allegations that the proposed
combination does not teach the language for various dependent claims. See
Appeal Br. 16–20. Appellant is reminded that a general allegation that the
claims define a patentable invention without specifically pointing out how
the language of the claims patentably distinguishes them from the references
does not constitute a persuasive response. A statement which merely points
out what a claim recites will not be considered an argument for separate
patentability of the claim. See 37 C.F.R. § 41.37(c)(1)(vii).
Accordingly, we sustain the Examiner’s rejection of independent
claims 1, 10, 15 under 35 U.S.C. § 103 as being unpatentable over at least
Yiannios in view of Vesely, likewise with the rejection of dependent claims
2–7, 9, 11–14, and 16–20, which are not argued separately with particularity.

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CONCLUSION
The Examiner’s rejections R1–R3 of claims 1–7 and 9–20 as being
unpatentable under 35 U.S.C. § 103 are affirmed.
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 7, 10–13,
15–17, 20
103 Yiannios, Vesely 1–4, 7,
10–13,
15–17, 20

5, 6, 18, 19 103 Yiannios, Vesely,
Goossens
5, 6, 18,
19

9, 14 103 Yiannios, Vesely,
Sumi
9, 14
Overall
Outcome
1–7, 9–20

No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED