Nintendo Co., Ltd.

Patent Trials and Appeals Board

Aug 31, 2020

14635457 - (D) (P.T.A.B. Aug. 31, 2020)

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.
14/635,457 03/02/2015 Yuki MIZUGUCHI 723-4107 1008
27562 7590 08/31/2020
NIXON & VANDERHYE, P.C.
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
MOSSER, ROBERT E
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
08/31/2020 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 YUKI MIZUGUCHI, TOORU OOE, and SHOYA TANAKA
Appeal 2019-006102
Application 14/635,457
Technology Center 3700
Before JOHN C. KERINS, DANIEL S. SONG, and
BRETT C. MARTIN, Administrative Patent Judges.
SONG, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Examiner’s decision to reject claims 1–24. We have jurisdiction under
35 U.S.C. § 6(b). A telephonic hearing was conducted with the Appellant’s
representative on August 19, 2020, a transcript of which will be entered into
the electronic record in due course.
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). The Appellant identifies the real party in interest as Nintendo Co.,
Ltd. Appeal Br. 3.
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Application 14/635,457
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CLAIMED SUBJECT MATTER
The claims are directed to a game processing system. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A game processing system comprising a first gaming
device, a second gaming device, and a third gaming device,
wherein the first gaming device comprises:
a first network interface; and
at least one first processor configured to:
transmit a first information via the first
network interface;
in response to receiving a second information
from the second gaming device after transmitting
the first information, execute an authentication
process with the second gaming device; and
execute a communicative game based on
communication, using the first network interface,
with the second gaming device after said executing
the authentication process with the second gaming
device,
wherein the second gaming device comprises:
a second network interface; and
at least one second processor configured to:
in response to receiving the first information
via the second network interface execute the
authentication process to perform mutual
authentication with the first gaming device; and
execute the communicative game based on
communication, using the second network
interface, with the first gaming device after said
executing the authentication process with the first
gaming device, and
wherein the third gaming device comprises:
a third network interface; and
at least one third processor configured to:
in response to receiving the first information
via the third network interface, without performing
the authentication process to perform mutual
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authentication with either the first gaming device or
the second gaming device,
receive, using the third network interface,
data associated with the communicative game,
currently being executed by the first and/or second
gaming device, from at least one of the first gaming
device and the second gaming device; and
execute a spectating experience process
based on the received data.
Appeal Br. 24, Claims App., emphasis added.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Spanton US 2007/0117635 A1 May 24, 2007
Brunstetter US 2008/0119286 A1 May 22, 2008
Thompson US 7,403,542 B1 July 22, 2008
Ho US 2012/0163235 A1 June 28, 2012
REJECTIONS
1. Claims 1–3, 5, 7–10, 15, and 20–24 are rejected under 35
U.S.C. §103(a) as being unpatentable over Brunstetter in view of Ho. Final
Act. 2.
2. Claims 4, 6, and 19 are rejected under 35 U.S.C. §103(a) as
being unpatentable over Brunstetter in view of Ho and Spanton. Final Act.
12.
3. Claims 11–14 and 16–18 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Brunstetter in view of Ho and Thompson. Final
Act. 13.
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OPINION
Rejection 1: Brunstetter in view of Ho
The Examiner rejects claims 1–3, 5, 7–10, 15, and 20–24 as being
unpatentable over Brunstetter in view of Ho. Final Act. 2. As to
independent claim 1, for example, the Examiner finds that Brunstetter
discloses the invention substantially as claimed, but fails to disclose that the
authentication process involves mutual authentication. Final Act. 2–4. The
Examiner finds that Ho discloses that mutual authentication is known, and
concludes that it would have been obvious to one of ordinary skill in the art
to have incorporated mutual authentication in Brunstetter “in order to utilize
a known form of access credentials,” which is “compatible with peer-to-peer
networking and offer the added security of encrypted communication.”
Final Act. 4.
The Appellant disagrees with the Examiner’s finding with respect to
Brunstetter. In particular, the Appellant points out that claim 1 requires the
second and third gaming devices to receive the same “first information,” but
for the second and third gaming devices to take different actions in response
thereto, with the second gaming device executing a mutual authentication
processes, and the third gaming device receiving game play data without
performing an authentication process. Appeal Br. 13–14; see also Appeal
Br. 15–16. The Appellant argues that the differing actions taken by the
second and third gaming devices in response to the same first information is
not disclosed in Brunstetter. Reply Br. 3.
We do not find the Appellant’s argument persuasive. As the
Examiner finds, Brunstetter discloses the distribution of game play broadcast
to spectators “wherein the authentication of the same is recognized as an
alternatively optional step and thus fairly not required to in order to
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spectate.” Final Act. 4, citing Brunstetter, Abstract; ¶¶ 9, 32, 36, 40–43, 81;
see also Ans. 6. Indeed, Brunstetter discloses:
Various users in the network (i.e., spectators and
participants) may set security credentials as to the access of
certain game data. For example, the credentials may identify
who may access what portions of what game data and from
where. As such, portal 114 may require certain user credentials
(e.g., name and password) in order to gain access to certain
game data.
[0042] The interface of portal 114 may further indicate . . .
whether permission is required to be an active participant or a
spectator relative this particular game or user.
Brunstetter, ¶¶ 41, 42.2
The cited portions of Brunstetter make clear that spectators can view a
live game being played by other participants, and that security credentials
and permissions may, and thus, optionally, be set for participants and/or
spectators. Brunstetter, ¶¶ 9, 32, 36, 41–44, 81. The Examiner is correct
that Brunstetter discloses, or at least suggests to one of ordinary skill, that
“authentication may or may not be required,” and whether to require
authentication may be “dependent on if the user selects the role of spectator
or participant.” Ans. 22, citing Brunstetter ¶¶ 41–42. Accordingly, we
agree with the Examiner that authentication information “would not be
required to be provide by the third spectating gaming device responsive to
the first information” so that the limitations pertaining to the third processor

2 We note that although portions of Brunstetter describe the interface portal
114, Brunstetter further discloses that its reference to clients/portal/server is
“merely for the convenience of understanding the present invention,” and
that the invention may be implemented in different configurations, including
“peer-to-peer network, a client-server network, an ad hoc network, or within
a peer-group (e.g., a specified group of peers).” See Brunstetter ¶ 43.

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of claim 1 is disclosed, or otherwise would have been obvious to one of
ordinary skill in the art. Ans. 22–23.
The Appellant argues that
neither a specifying whether permission is required nor
describing that the spectator client may ‘sign on’ to the
network, teaches or suggests that while the second game device
performs mutual authentication with the first gaming device,
the third gaming device does not perform the mutual
authentication, as required by claim 1.
Appeal Br. 16.
However, we initially observe that, as to the “mutual authentication”
limitation of the second gaming device, the rejection finds that Brunstetter
discloses authentication, and further relies on Ho for the disclosure of
“mutual” authentication. Final Act. 2–4; see also Ans. 23 (“Brunstetter is
silent regarding the particular type of authentication known as ‘mutual
authentication’, however the rejection of record incorporates the secondary
reference of Ho for teaching this feature.”). In that regard, the Appellant
does not dispute the finding that Ho discloses mutual authentication as a
known authentication technique in the art.
In addition, as to the third gaming device, as discussed above, in view
of Brunstetter’s teaching that security credentials and permissions may or
may not be required can be reasonably be understood to mean that
authentication is optional considering that there will be no need for
authentication if security credentials and permissions are not required. In
addition, it would have been readily apparent and obvious to one of ordinary
skill that authentication of the spectator client, which corresponds to the
third gaming device claimed, would not have been required, to any extent
that Brunstetter fails to explicitly disclose such lack of authentication.
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The Appellant also argues that “the cited paragraphs and the entirety
of Brunstetter do not disclose that a selective authentication is performed
based on the transmission of the same information to both second and third
gaming devices.” Reply Br. 6. In that regard, according to the Appellant,
“although Brunstetter may also teach that authentication is optional for
spectator clients, there is no teaching in the cited paragraphs of Brunstetter
that mutual authentication (or even authentication) occurs in a participant
client in response to receiving ‘distribution of game play’ by a portal
described in Brunstetter.” Appeal Br. 15. The Appellant also asserts that
Brunstetter “discloses that the participant client and the spectator client do
not access the same ‘portions of game data’” because it discloses live data
being accessed by the participant client, but archived portions of game data
being accessed by the spectator client. Reply Br. 3–4, citing Brunstetter ¶
40.
However, as the Examiner points out, “the claim does not impose any
limitation describing the nature of the information being utilized,” and
“Brunstetter teaches presenting a game and the claimed first information
relating thereto . . . enabling additional client devices to . . . either participate
in or alternative to watch as a spectator.” Ans. 22, citing Brunstetter ¶¶ 39–
40. In other words, the claim does not specify what constitutes the recited
“first information,” and as discussed above, it is clear from Brunstetter that
the participant client (i.e., second gaming device) and the spectator client
(i.e., third gaming device) access the same game being played. Based on
this functionality of accessing the same game as a participant or as a
spectator, it is apparent that both the participant client and the spectator
client receive at least some “first information” that is the same, including
information that identifies the game being played. In that regard, in
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considering the scope and content of the prior art, “it is proper to take into
account not only specific teachings of the reference but also the inferences
which one skilled in the art would reasonably be expected to draw
therefrom.” In re Preda, 401 F.2d 825, 826 (CCPA 1968); cf. Hybritech Inc.
v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1384 (Fed. Cir. 1986) (“a
patent need not teach, and preferably omits, what is well known in the art.”).
Moreover, the fact that paragraph 40 of Brunstetter specifically
discloses the added functionality of the spectator clients being able to access
archived game play data does not detract from its other disclosure of the
spectator accessing the same game being played by participants, or its
disclosure of clients accessing game data of a game “being played by other
players.” See, e.g., Brunstetter, ¶ 9 (“users who are not playing a particular
game may desire to watch a game being played by other players as a
spectator. For example, players who belong to a game clan may want to
watch fellow members of their clan play against other game clans”); ¶ 81
(“the game data or a portion of the game data may be broadcast over the
network 106. The broadcast game data may then available to one or more
spectator clients 112 and portal 114. The game data may be broadcast from
a server 108 or one or more participant clients 102. The broadcast may be
real-time or, if it has been stored in the archival memory 306, time-
shifted.”).
The Appellant further argues that “permission, as taught in paragraph
[0041] [of Brunstetter], is different from mutual authentication, and
moreover that ‘sign on’ to the portal as taught in paragraph [0032], is also
different from mutual authentication, as recited in claim 1.” Appeal Br. 16.
However, the Appellant does not explain what the alleged differences are,
does not appreciate the functional teachings of Brunstetter discussed above,
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does not address the obviousness basis of the rejection noted above, and
appears to contradict its earlier concession that Brunstetter discloses optional
authentication for spectator clients. See Appeal Br. 15 (“although
Brunstetter may also teach that authentication is optional for spectator
clients, there is no teaching . . . that mutual authentication (or even
authentication) occurs in a participant client in response to receiving
‘distribution of game play’ by a portal described in Brunstetter.”).
Finally, as to Brunstetter not disclosing “mutual” authentication, we
again note that the Examiner relied upon Ho for this limitation. Final Act. 4.
The Appellant argues that “Ho, even if teaching mutual authentication as
alleged by the Office Action, does not rectify the above identified
deficiencies of Brunstetter with respect to claim 1.” Appeal Br. 16.
However, as discussed above, we are not persuaded by the Appellant’s
arguments as to the alleged deficiencies of Brunstetter.
The fundamental basis of the Appellant’s argument is that Brunstetter
does not explicitly disclose the lack of authentication by the spectator client
(i.e., third gaming device) in response to receipt of “a first information” as
compared to authentication by the participating client (i.e. second gaming
device). However, as discussed above, Brunstetter discloses or otherwise
suggests that authentication is optional. Accordingly, a game processing
system as recited in claim 1 would have been obvious to one of ordinary
skill in the art. KSR Int’l v. Teleflex, Inc., 550 U.S. 398, 421 (2007) (“[a]
person of ordinary skill is also a person of ordinary creativity, not an
automaton.”).
Therefore, in view of the above considerations, we affirm the
Examiner’s rejection of claim 1. The Appellant relies on the same
unpersuasive arguments in support of patentability of independent claims 21
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and 23. Appeal Br. 17. Accordingly, the rejection of claims 21 and 23 is
affirmed as well. Except for arguments directed to dependent claims 9 and
10 addressed below, the Appellant does not submit arguments directed to the
remaining rejected dependent claims 2, 3, 5, 7, 8, 15, 20, 22, and 24 that
ultimately depend from one of the independent claims. Accordingly, these
claims fall with their respective independent claims.
Claims 9 and 10
Claim 9 recites that the first processor does not register the third
gaming device, and by virtue of its dependency on claim 7, requires the first
processor to be configured to register the second gaming device after the
authentication process. Appeal Br. 26, Claims App. Claim 10 also depends
from claim 7 and recites, inter alia, that the third processor registers the first
gaming device. Appeal Br. 26, Claims App.
The Appellant argues that Brunstetter “does not disclose that for the
same game, the second gaming device is registered whereas that third
gaming device is not registered at the first gaming device which is executing
the game with the second gaming device.” Appeal Br. 18; see also Reply
Br. 7. In response, the Examiner points out that the Appellant’s
Specification uses the term “register” to describe how devices identify each
other so as to allow communication with one another. Ans. 24, citing Spec.
¶ 86. Indeed, the Appellant’s Specification essentially discloses that the
recited registration refers to recordation or storage in a device (e.g., master),
identifying information of an authenticated device (e.g., clients). See, e.g.,
Spec. ¶ 86 (“the master registers, in the own apparatus, identification
information (MAC addresses) of the clients C authenticated by the master”);
¶ 87 (“FIG. 6 is a diagram showing a registration table 80 of clients which is
generated in the master”); Fig. 6.
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Accordingly, as the Examiner explains, the combination of Brunstetter
and Ho teaches that participant clients are registered to each other as recited
in claim 7 in that they know the identity of each other through mutual
authentication so as to allow direct communication with one another. Ans.
24–25, citing Brunstetter, Fig. 1; ¶¶ 43, 45. The Examiner concludes that
because spectator clients would not be authenticated, there is no registration
thereof in the first participant client. Ans. 25, citing Brunstetter, Fig. 1; ¶¶
36, 38, 40.
The Appellant responds that the Examiner’s explanation “does not
change that Brunstetter does not teach or suggest the features as they are
recited in claims 9-10,” and does not address the argued limitations of claim
1 from which these claims ultimately depend. Reply Br. 7. However, the
Appellant’s argument circles back to its arguments regarding claim 1, and
does not substantively rebut the Examiner’s obviousness rejection of claims
9 and 10, or address the Examiner’s further explanation thereof. See also 37
C.F.R. § 41.37(c)(iv) (“A statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim.”).
Accordingly, we are not persuaded by the Appellant’s arguments and
affirm the Examiner’s rejection of claims 9 and 10.

Rejection 2: Brunstetter in view of Ho and Spanton
The Appellant does not present specific arguments directed to the
Examiner’s rejection of dependent claims 4, 6, and 19 based on combination
of Brunstetter, Ho, and Spanton. Final Act. 12. Thus, this rejection of
claims 4, 6, and 19 is affirmed.

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Rejection 3: Brunstetter in view of Ho and Thomson
The Examiner rejects claims 11–14 and 16–18 as unpatentable over
Brunstetter in view of Ho and Thompson, the Examiner relying on
Thompson for disclosing the management and registration frames required
by these claims. Final Act. 13. Initially, the Appellant argues that
Thompson does not “rectify the above identified deficiencies of Brunstetter
and Ho.” Appeal Br. 19. However, as discussed above, we are not
persuaded of any deficiencies in the combination of Brunstetter and Ho.
Claim 12
As to claim 12, the Appellant argues that:
claim 12, when considered as a whole, requires that the second
gaming device and the third gaming device respond differently
to the management frame from the first gaming device. More
particularly, claim 12 requires that, whereas the second gaming
device responds to the management frame by transmitting a
registration frame, the third gaming device unilaterally registers
the first gaming device by storing the first identification
information included in the management frame, without
transmitting a registration frame for registering identification
information of the third gaming device in the first gaming
device.
Reply Br. 8; see also Appeal Br. 19.
The Appellant also argues that although Thompson describes “state
machines for inbound/outbound MAC, IP and TCP packets, it does not
rectify the admitted deficiencies of Brunstetter and Ho with respect to the
specific requirements of claim 12.” Appeal Br. 19–20; see also Reply Br. 8.
However, the Examiner has not admitted to any deficiencies in
rejecting claim 12, and instead, found that Thompson discloses the
limitations of claim 12. See Final Act. 12, citing Thompson, col. 3, l. 15–
col. 5, l. 18. The Examiner did concede that the combination of Brunstetter
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and Ho does not disclose the limitations of claim 11 from which claim 12
depends, but relied on Thompson for disclosing the recited network features
of using a management frame and a registration frame as recited in claim 11.
Final Act. 13–14, citing Thompson col. 3, l. 15–col. 5, l. 18; col. 7, l. 6–col.
8, l. 25; col. 9, ll. 27–37.
In addition, the Specification utilizes the term “frame” to generically
refer to the format of the data transmitted and received between the game
apparatuses. Spec. Figs. 9, 15, 16, 22, 23. However, as noted above, the
Examiner found that such frames are known in the network art as evidenced
by Thompson. Final Act. 13–14. Although the Appellant argues that claim
12 requires the second gaming device and the third gaming device to
respond differently to the management frame from the first gaming device,
this line of argument is substantively the same as that presented relative to
claims 1, 9, and 10 discussed above, and is likewise unpersuasive.
Therefore, the Appellant’s arguments are unpersuasive, and we affirm
this rejection of claim 12.
Claim 16
The Appellant argues that Thompson,
does not teach or suggest the third gaming device selecting the
first gaming device to spectate by presenting information
regarding the plurality of gaming devices and enable a user to
select one of the plurality of gaming devices as the first gaming
device based upon the presented information, as required by
claim 16.
Appeal Br. 20.
The Examiner explains that “Brunstetter teaches presenting multiple
selectable games to the player . . . while the prior art of Thompson teaches
the use of frames.” Ans. 27, citing Brunstetter, ¶¶ 28, 38, 40; Thompson,
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col. 3, l. 15–col. 5, l. 18. The Appellant replies reiterating the same
arguments regarding Thompson set forth in its Appeal Brief. See Reply Br.
9. Thus, the Appellant’s argument based on Thompson appears to be
misdirected and unpersuasive. Accordingly, we affirm this rejection of
claim 16.

Claim 17
The Appellant argues that Thompson
does not teach or suggest specifically that the second gaming
device does exchange an authentication frame and an
association frame with the first gaming device, whereas the
third gaming device does not exchange either frame with the
first gaming device while both the second gaming device and
the third gaming device access the same game being processed.
Appeal Br. 21; see also Reply Br. 9.
However, this line of argument is substantively the same as that
presented relative to claims 1, 9, and 10 discussed above, and is likewise
unpersuasive. Therefore, we agree with the Examiner that claim 17 would
have been obvious to one of ordinary skill in the art for the reasons
discussed relative to claims 1 and 12, and affirm the rejection of claim 17.
Ans. 27–28
Claim 18
Claim 18 depends from claim 1 and requires, inter alia, alternating the
gaming devices “between an awake state and a power-saving state at
predetermined time cycles,” the first processor periodically transmitting a
management frame with information indicating the predetermined time
cycles. Appeal Br. 28–29. The Appellant argues that “Thompson merely
teaches synchronization across clock domains, and teaches neither the
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synchronization of awake/power-saving stages nor the specific manners in
which claim 18 requires the second and third gaming devices to respond to
the first gaming device with respect to authentication and power-saving.”
Appeal Br. 22.
The Examiner responds that “the prior art teaches synchronizing and
altering communication operations between an [i]dle and active state and the
[i]dle state is understood to implicitly define a period of lower power
consumption due to the lack of communication operations.” Ans. 28, citing
Thompson, Fig. 3C2; col. 8, l. 65–col. 9, l. 14; col. 25, ll. 19–33. The
Appellant replies by reiterating the same arguments regarding Thompson set
forth in its Appeal Brief, and does not address the disclosure in Thompson
with respect to idle and active states, or the Examiner’s finding that these
states correspond to the recited power-saving/awake stages. See Reply Br.
10. Therefore, we are not persuaded of error in the Examiner’s finding as to
Thompson, or the conclusion of obviousness, and affirm the rejection of
claim 18.
The Appellant does not submit separate arguments directed to the
remaining dependent claims 11, 13, and 14 that are also rejected.
Accordingly, the Examiner’s rejection of these claims is also affirmed.
CONCLUSION
The Examiner’s rejections are affirmed.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 5, 7–
10, 15, 20–
24
103(a) Brunstetter, Ho 1–3, 5, 7–
10, 15, 20–
24

4, 6, 19 103(a) Brunstetter, Ho,
Spanton
4, 6, 19
11–14, 16–
18
103(a) Brunstetter, Ho,
Thompson
11–14, 16–
18

Overall
Outcome
1–24

TIME PERIOD FOR RESPONSE
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