Virtual Sports Training, Inc.

Patent Trials and Appeals Board

Jul 22, 2020

14607623 - (D) (P.T.A.B. Jul. 22, 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.
14/607,623 01/28/2015 Erik W. Jones A-2757 6604
33197 7590 07/22/2020
STOUT, UXA & BUYAN, LLP
23461 South Pointe Drive
Suite 120
Laguna Hills, CA 92653
EXAMINER
UTAMA, ROBERT J
ART UNIT PAPER NUMBER
3715
MAIL DATE DELIVERY MODE
07/22/2020 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 ERIK W. JONES and
NORMAN J. PRESSMAN
__________

Appeal 2019-006577
Application 14/607,623
Technology Center 3700
__________

Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.

HOELTER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1–11. Final Act. 1 (Office Action Summary). Claims
12–20 have been canceled. See Appeal Br. 2. We have jurisdiction under 35

1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies “Virtual Sports Training, Inc.” as the real party in
interest. Appeal Br. 1.
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U.S.C. § 6(b). For the reasons explained below, we find error in the Examiner’s
rejections.
Accordingly, we REVERSE the Examiner’s rejections.

CLAIMED SUBJECT MATTER
The disclosed subject matter “relate[s] to motion data capture, analysis,
display, storage, retrieval, communication and professional feedback for the
purpose of evaluating the body motion of a subject involved in a challenging
fine motor and/or gross motor neuromuscular activity” in which the “particular
activity includes target-based applications, such as firearms training.” Spec.
1:6–10. System claim 1 is independent. Claim 1 is representative of the claims
on appeal and is reproduced below.
1. A firearms motion capture and analysis system, comprising:
a motion sensor for detecting and reporting data related to
the motion of a firearm held by a user;
software disposed on a personal communications device for
receiving data from the motion sensor and transmitting the data to
a host server; and
software disposed on the host server for receiving the
transmitted data and analyzing the transmitted data by comparing
the transmitted data to reference data stored on a database on the
host server, the host server software being further adapted to
transmit analyzed data back to the personal communications
device;
wherein the software on the personal communications
device is adapted to communicate the analyzed data to a user.

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REFERENCES RELIED ON BY THE EXAMINER
Hudson et al. US 2013/0071815 A1 Mar. 21, 2013
(hereinafter “Hudson”)
Kramer US 2015/0369554 A1 Dec. 24, 2015
Henry, Patrick, Pistol Correction Chart, 1–5, 2013,
www.http://aegisacademy.com/author/coach-pat/ last accessed
June 2020 (hereinafter “Pistol Correction Chart”).

THE REJECTIONS ON APPEAL
Claims 1–9 and 11 are rejected under 35 U.S.C. § 103 as unpatentable
over Kramer and Hudson. Final Act. 4–6.
Claim 10 is rejected under 35 U.S.C. § 103 as unpatentable over Kramer,
Hudson, and Pistol Correction Chart. Final Act. 6–7.
ANALYSIS
THE REJECTION OF CLAIMS 1–9 AND 11
AS OBVIOUS OVER KRAMER AND HUDSON
THE REJECTION OF CLAIM 10
AS OBVIOUS OVER KRAMER, HUDSON, AND PISTOL CORRECTION
CHART
Each rejection relies primarily on Kramer. See Final Act. 4, 6. The
earliest possible priority date of Kramer is June 18, 2014, based on the earliest-
filed provisional application in that matter. See Kramer code (60). Appellant,
on the other hand, claims benefit under 35 U.S.C. § 120 from U.S. provisional
application 61/933,221 (“’221 application”), having a filing date of January 29,
2014, more than four months earlier than Kramer’s earliest possible priority
date. See Application Data Sheet, filed January 28, 2015; see also Final Act. 2.
The Examiner determines that the ’221 application “fails to provide
adequate support or enablement in the manner provided by 35 U.S.C. 112(a)” in
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regard to the following limitations of claim 1: (1) “software disposed on a
personal communications device for receiving data from the motion sensor and
transmitting the data to a host server;” and (2) “software disposed on the host
server for receiving the transmitted data and analyzing the transmitted data by
comparing the transmitted data to reference data stored on a database on the
host server.” Final Act. 2–3 (emphasis omitted). The Examiner finds that the
’221 application “depicts a basic description of the result of the software (see
FIG[.] 2 and page 2[,] paragraph 2)” and that “th[is] basic description falls short
on the necessary computer and algorithm required to support the[se]
limitation[s].” Final Act. 3. In the Answer, the Examiner provides clarification
stating:
[T]he final rejection do[es] not dispute that [] Appellant ha[s]
possession of the software necessary to transfer data from a
personal communication device to the server. However, the
[E]xaminer questions whether [] Appellant ha[s] possession for the
analysis of the motion data [on] the server. A review of page 4 of
the provisional application shows that the analysis of motion data
in the provisional application relies on the mental process of the
professional. The provisional application does not show any
computer [] algorithm that can be used to perform the automatic
analysis of the motion data by the computer as required by the
limitation of claim 1.
Ans. 8 (emphasis added). As such, the Examiner determines that Appellant
“has not complied with one or more conditions for receiving the benefit of an
earlier filing date under 35 U.S.C. [§] 120.” Final Act. 2.
Appellant contends that the present non-provisional application is entitled
to the benefit of the earlier filing date of its provisional application because the
’221 provisional application provides adequate support with respect to the two
limitations of claim 1 reiterated above. Appeal Br. 14–16 (citing the ’221
application Figs. 1–3, 6), 17–19.
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There is merit to Appellant’s argument. The earlier filed ’221 application
discloses the following:
(1) “[t]he sensor captures the movement during each shot, and sends the
data to the smart phone/table, which then transmits to a remote data base in the
cloud” (’221 application, 1)2 (emphasis added);
(2) “[t]he remote server based software analyzes, evaluates, compares
and reports each shooter[’]s result to a central account for group evaluation of
multiple shooters” (id. at 2 (emphases added));
(3) “Training Analysis Database” resides on “Servers” (id. at Figs. 2–3);
(4) “[s]ophisticated analytics immediately shot against your account
database to determine [sic] trending and recommendation correction” (id. at 3);
and
(5) Figure 6 depicts a flow chart with blocks “Resulting Data Transfer,”
“Professional Instructor Shot metric database,” and “Data Analysis Routine”
(id. at Fig. 6).
The Examiner has not adequately demonstrated why, in light of these
disclosures, Appellant has not established possession in the ’221 application of
“software disposed on the host server for receiving the transmitted data
[originating from the motion sensor] and analyzing the transmitted data by
comparing the transmitted data to reference data stored on a database on the
host server” as recited in claim 1. Figure 6 of the ’221 application is a flow
chart depicting the step of processing received motion-based data and analyzing
same on a remote server. See ’221 application, 2 (“The remote server based

2 The pages of the ’221 application are not numbered. We refer to the ’221
application as if it is numbered starting at page 1 and ending at page 6.
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software analyzes, evaluates, compares and reports each shooter[’]s result to a
central account.”), (Figs. 1, and 2). The Examiner does not explain how the
above fails to disclose an algorithm (and/or software) on a host server that
receives transmitted motion data and analyzes same by comparing the
transmitted data to reference data stored on a database on the host server, to the
extent that these features are claimed. Appellant argues, “[t]hose skilled in the
art, reviewing this disclosure, would be fully in possession of any algorithms
required to recreate this function without undue experimentation, which is the
standard at issue when determining whether the [’]221 application supports the
claims at issue.” Appeal Br. 17.
In response, the Examiner cites to the Manual of Patent Examining
Procedure (“MPEP”) by stating:
When examining computer-implemented functional claims,
examiners should determine whether the specification discloses the
computer and the algorithm (e.g., the necessary steps and/or
flowcharts) that perform the claimed function in sufficient detail
such that one of ordinary skill in the art can reasonably conclude
that the inventor possessed the claimed subject matter at the time
of filing.
Ans. 8 (quoting MPEP 2161.01). However, the Examiner does not persuade us
that Appellant’s above assertion is in error, because the Examiner does not
explain how the ’221 application fails to disclose “the necessary steps and/or
flowcharts” that perform the claimed function or how the ’221 application is not
sufficient for a skilled artisan to conclude that the inventor possessed the
claimed subject matter.
We thus agree with Appellant that the present non-provisional
application is entitled to the benefit of a priority date of January 29, 2014 with
respect to the above noted limitations. As this date is earlier than Kramer’s
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earliest possible priority date of June 18, 2014, Kramer is not available as prior
art against the present application. Accordingly, the rejections relying on
Kramer cannot stand. For these reasons, the Examiner’s rejections of claims 1–
11 are not sustained.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–9, 11 103 Kramer, Hudson 1–9, 11
10 103 Kramer, Hudson, Pistol
Correction Chart
10
Overall
Outcome
1–11

REVERSED