Ex Parte 6702585 et al

Patent Trial and Appeal Board

May 28, 2015

95001236 (P.T.A.B. May. 28, 2015)

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.
90/009,522 08/21/2009 6,702,585 7908
20210 7590 05/28/2015
DAVIS & BUJOLD, P.L.L.C.
112 PLEASANT STREET
CONCORD, NH 03301
EXAMINER
WOOD, WILLIAM H
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
05/28/2015 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
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.
95/001,236 09/21/2009 6702585 SCEA.146736 6269
20210 7590 05/28/2015
DAVIS & BUJOLD, P.L.L.C.
112 PLEASANT STREET
CONCORD, NH 03301
EXAMINER
WOOD, WILLIAM H
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
05/28/2015 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
______________

ADC TECHNOLOGY, INC.,
Patent Owner, Appellant, and Cross-Respondent

v.

NINTENDO OF NORTH AMERICA, INC., SONY COMPUTER
ENTERTAINMENT AMERICA, INC., AND MICROSOFT
CORPORATION,1
Third Party Requesters, Cross-Appellants, and Respondents
______________

Appeal 2014-0091342
Reexaminations 95/001,236 and 90/009,522 (merged)
United States Patent 6,702,585 B2 (expired)3
Technology Center 3900
______________

1 During the pendency of these reexamination proceedings, Sony Computer
Entertainment America Inc. merged with Sony Computer Entertainment
America LLC. Third Party Requestors’ Cross Appeal Brief (“Req. Appeal
Br.”), filed on December 17, 2013, at 2 n.1.
2 This appeal is related to pending PTAB Appeals 2014-009132 and 2014-
009133 (hereinafter “’9132 Appeal” and “’9133 Appeal”). Decisions on
Appeal in all three appeals are being mailed concurrently.
3 This patent (hereinafter “’585 patent”) issued to Takeya Okamoto on
March 9, 2004, based on Application 10/307,886, filed on December 2,
2002. The ’585 patent is identified as the sixth in a chain of U.S.
applications beginning with Application 08/232,862 (now Patent 5,489,103),
filed on April 25, 1994. ’585 patent 1:5–15. The ’585 patent expired on
April 25, 2014.
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Before JOHN C. MARTIN, STEPHEN C. SIU, and IRVIN E. BRANCH,
Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL
We have jurisdiction under 35 U.S.C. §§ 6, 134, and 315.
For the following reasons, we are dismissing this appeal with respect
to the amended and new claims.
The ’585 patent issued with original claims 1–16, of which claims 1,
3, and 5–16 are independent claims. ’585 patent cols. 14–18.
The Right of Appeal Notice (RAN), mailed on September 3, 2013,
identifies the rejected claims as claims 1, 2, 4–8, 10, 13–15, and 17–38.
RAN 1, box 5.4
The ’585 patent expired on April 25, 2014.5 An expired patent may
not be amended to include amended or new claims. As explained in MPEP
§ 2250 (9th ed. March 2014):
III. AMENDMENT AFTER THE PATENT HAS EXPIRED
Pursuant to 37 [C.F.R. §] 1.530(j), “[n]o amendment may
be proposed for entry in an expired patent.” Thus, if a patent
expires during the pendency of a reexamination proceeding for

4 Claim 3 has been canceled, and claims 9, 11, 12, and 16 are not subject to
reexamination. RAN 1, boxes 1b and 2.
5 Patent Owner’s Rebuttal Brief, which is last-filed of the briefs before us in
this appeal, was filed on April 7, 2014.
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a patent, all amendments to the patent claims and all claims
added during the proceeding are withdrawn. This is carried out
by placing a diagonal line across all amended and new claims
(and text added to the specification) residing in the amendment
papers. The patent owner should be notified of this in the next
Office action. The Office action will hold the amendments to
be improper, and state that all subsequent reexamination will be
on the basis of the unamended patent claims. This procedure is
necessary since no amendments will be incorporated into the
patent by a certificate after the expiration of the patent.
Of the rejected claims, the only claim that is not an amended or new
claim is claim 6.
Dependent “original” claim 2 is dependent upon amended claim 1 and
thus is an amended claim.
Independent claim 4 likewise is an amended claim. Dependent claim
4 was rewritten as an independent claim by amending it to (i) include the
subject matter of cancelled parent claim 3 and (ii) additionally recite that
“the game information comprises game data” (underlining omitted). Claims
App., Patent Owner’s Appeal Brief (“PO Appeal Br.”), filed December 23,
2013, at 19. Due to this additional recitation, claim 4 effectively is an
amended claim rather than being original dependent claim 4 merely
rewritten in independent form.
For the above reasons, this appeal is DISMISSED with respect to
claims 1, 2, 4, 5, 7, 8, 10, 13–15, and 17–38, leaving only original claim 6
for our consideration in this appeal.

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We AFFIRM the Examiner’s decision that claim 6 is unpatentable
over the prior art.

I. STATEMENT OF THE CASE
A. Related Litigation and Reexamination Appeals
The related litigation and PTAB reexamination appeals are identified
at pages 2–4 of the Decision on Appeal in Appeal 2014-009132 (hereinafter
“’9132 Appeal Decision”), which is incorporated by reference herein in its
entirety, as is the Decision on Appeal in Appeal 2014-009133 (“’9133
Appeal Decision”).

B. These Merged Reexamination Proceedings
Ex parte reexamination of claims 1, 2, 5, 8, 10, 13, and 15 was
requested in a “Request for Reexamination of USP 6,702,585,” filed by
Patent Owner on July 9, 2009. Inter partes reexamination of claims 1–8, 10,
and 13–15 was requested in the Request.
The ex parte and inter partes proceedings were merged by a
“Decision, Sua Sponte, to Merge Reexamination Proceedings,” mailed on
April 14, 2010. Except where otherwise indicated, the papers cited below
are in the file of the inter partes proceeding in this ’9134 appeal.

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C. The Claimed Subject Matter
The sole argued feature in claim 6 is that “the personal communicator
displays the number of people who can participate in the game.” Claim 6 is
reproduced below.
6. (Original) A software distributing system comprising a
personal communicator for bi-directional communication
and a distribution center, the system transmitting game
information stored in a game software database provided
in the distribution center to the personal communicator
which requested the game information via
communication lines, storing the game information in a
memory provided in the personal communicator, and
enabling game play in accordance with the game
information stored in the memory,
said distribution center comprising:
a mechanism for transmitting the game information at the
request of the personal communicator to the personal
communicator; and
a mechanism for charging a use fee on the use of the
transmitted game information in the personal communicator and
for direct debit against an account in a banking institution; and
the personal communicator displays the number of
people who can participate in the game.
Claims App., PO Appeal Br. 20 (emphasis added).
The claimed feature of displaying the number of players who can
participate in the game is described in the ’585 patent with the aid of
Figure 5, which is reproduced below.
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Figure 5 is an example of screen display in accordance with the method of
further operation selection in the embodiment. ’585 patent 3:53–54. “The
display part 313 displays the number of players able to participate in the play
and the charge, in addition to the game numbers and the game name.” Id. at
5:60–63.

D. The Rejections Before Us
The entered grounds of rejection of claims 1, 2, 4–8, 10, 13–15, and
17–38 are identified at RAN pages 7–9 as proposed grounds V, AB, AD–
AG, AI, AM, AR, AS, AU, AW, AX, AZ, BA–BH, and BN and Examiner-
initiated ground BO. Ground V is discussed at RAN page 35, grounds AB,
AD–AG, AI, AM, and AR are discussed at RAN pages 39–47, and the
remaining grounds are discussed at RAN pages 10–21. Of these grounds,
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the only grounds that apply to claim 6 are ground AI (RAN 41) and ground
AS (RAN 10), both of which are for obviousness based on Matsuda6 in view
of Tashiro.7
The only nonadopted proposed ground of rejection of claim 6 argued
in Requesters’ appeal is for obviousness based on Rhoades8 in view of Bush9
and Tsumura.10 Req. Appeal Br. 10 (Ground E).

II. THE MERITS OF THE EXAMINER’S REJECTION
For the following reasons, we agree with the Examiner’s conclusion
that the claimed subject matter would have been obvious based on Matsuda
in view of Tashiro.

6 Matsuda, Japanese Patent Publication H3-149693, published on June 26,
1991. Ex. B to Request for Inter Partes Reexamination Pursuant to
35 U.S.C. § 311 et seq. and 37 C.F.R. § 1.902 et seq. (hereinafter
“Request”), filed on September 21, 2009. Our understanding of Matsuda is
based on the translation provided by Requesters. Id.
7 Tashiro, et al., U.S. Patent 4,998,199, issued on March 5, 1991. Ex. A to
Third Party Requestors’ Comments Subsequent to Patent Owner’s Response
Under 37 C.F.R. § 1.947, filed on November 1, 2010 (refiled in modified
form on January 20, 2102). The refiled comments hereinafter are referred to
as “Requesters’ January 2012 Comments.”
8 Rhoades U.S. Patent 5,181,107, issued on January 19, 1993. Request
Ex. D.
9 Bush, U.S. Patent 4,789,863, issued on December 6, 1988. Request Ex. F.
10 Tsumura, U.S. Patent 5,547,202, issued on August 20, 1996. Request
Ex. G.
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A. Matsuda’s Disclosure
The following description of Matsuda, which appears at pages 30–32
of the ’9132 Appeal Decision, is repeated below for convenience.
Matsuda’s invention is “an information rental system configured to
rent [out] various kinds of information, such as game information,
educational information, video information, and audio information, to many
people.” Matsuda 4 para. 3(a) (emphasis added). Matsuda does not describe
transmitting a multiplayer game.
Matsuda’s Figure 1 is reproduced below.

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Id. at 11. Figure 1 is a block diagram illustrating a configuration of a system
in accordance with Matsuda’s invention. Id. at 10. The system includes an
information center 1 linked by communications lines 3 to terminal blocks 2,
which are located in (different) homes. Id. at 5–6. Information center 1
includes an “information data” storage block 11, which stores “information
data” in the form of “various kinds of game software, educational software,
video software or audio software, for example, which are normally returned
to rental stores after use.” Id. at 6 (emphasis added).
Each terminal block 2 includes identification means 21, selection
means 22, storage means 23, and display means 24. Id. at 7.
As acknowledged by Patent Owner, information is transmitted in
response to a request by a terminal block:
A user of the terminal accesses the center to get desired
information and references the index information attached to
the obtained information to determine whether to rent or not. If
rental is chosen, the rental information is transmitted to storage
means of the terminal block via communication line for use at
the terminal block. Pg. 5, first full paragraph.
’9132 Appeal, PO Appeal Br. 17.

B. The Merits of the Rejection
Matsuda does not describe using a terminal block to “display[] the
number of people who can participate in the game,” as claimed. Nor does
Matsuda describe the distribution of a multiplayer game, as implied by the
claim language in question.
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We begin our analysis by considering whether it would have been
obvious in view of Tashiro to modify Matsuda so as to be able to distribute
multiplayer games.
Tashiro’s invention “relates to a game playing system for business use
and particularly to such a system enabling a plurality of players to play a
game simultaneously in the same game space.” Tashiro 1:7–10. For the
reasons given below, Patent Owner is correct to state that in Tashiro the
video game “is pre-loaded on each coin-operated game machine” and thus
“is not transmitted to the coin-operated game machine.” PO Appeal Br. 7
(emphasis omitted).
Tashiro’s Figure 2 is reproduced below.

Figure 2 exemplifies one arrangement of Tashiro’s invention in which a
plurality of game machines are connected together in a loop. Id. at 2:36–38.
Specifically, the game playing system comprises a plurality of independent
game machines 10-a, 10-b . . . 10-h and data transmission lines 12
connecting the game machines together in a loop. Id. at 3:12–16.
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Each of the game machines is adapted to transmit data about that
game machine to the other game machines through transmission lines 12.
Id. at 3:16–19. The data transmitted between the game machines
includes game state data and data identification codes and are
sent through the transmission line loop 12 while passing
sequentially through the game machines in the clockwise
direction.
The game state data are data representative of the
progress of [the] game in each of the game machines while the
data identification code is used to specify a game machine 10
corresponding to the game state data.
Id. at 3:20–27 (emphasis added).
Each of game machines 10-a, 10-b . . . 10-h can be played
independently in a single-player game mode or can be played with the other
game machines simultaneously within the same game space in a multi-player
game mode. Id. at 3:28–33.
Tashiro’s invention is not limited to the above-described loop
embodiment. Tashiro’s Figure 12 is reproduced below.
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Figure 12 shows a network in which game machines 10 are arranged to form
a star-shaped layout about a central switching station 60. Id. at 10:66–67.
Central station 60 preferably includes a central game calculating section 20-
2 for controlling all of the game machines. Id. at 10:68–11:3.
We agree with the Examiner that the Figure 12 embodiment involves
transmitting the “game data associated with the game play” (i.e., Tashiro’s
game state data and data identification codes) between plural terminals
through a central agent:
Tashiro demonstrated that it was known at the time of invention
to establish multiple terminals or “personal communicators”
and for these terminals to engage in real-time interactive game
play (Tashiro: column 3, lines 16-20, 28-34; column 5, lines
47-57) by transmitting position data associated with the game
play between terminals either directly or through a central
agent (Tashiro: column 3, lines 21-27; column 6, lines 1-5;
column 10, line 60 to column 11, line 13; figures 7 and 12).
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Action Closing Prosecution (“ACP”), mailed May 24, 2013, at 41 (emphasis
altered).
The Examiner concludes that it would have been obvious in view of
Tashiro to modify Matsuda to distribute multiplayer games for the following
reasons:
It would have been obvious to one of ordinary skill in the art at
the time of invention to implement the game software system of
Matsuda with multiple personal communicators configured for
real-time interactive game play as found in Tashiro’s teaching.
This implementation would have been obvious because one of
ordinary skill in the art would be motivated to extend . . .
Matsuda’s potential market and commercial success to as many
areas as possible including multiplayer games which are
desirable (Tashiro: column 1, lines 20-24); and further because
such an implementation is an application of known techniques
and known elements to yield a predictable result.
Id. at 41–42 (emphasis altered). We agree with the Examiner that it would
have been obvious in view of Tashiro (particularly the star-shaped Figure 12
network) to modify Matsuda’s system to distribute multiplayer games. See
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (“[I]f a technique
has been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill.”).
Patent Owner argues:
Matsuda and Tashiro cannot be properly combined because
nothing in Tashiro suggests that any game information can be
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downloaded, nor does anything in Matsuda suggest that a game
may be played cooperatively. . . . Therefore, there is no
motivation at all to combine, despite the Office Action's
conclusory statement that commercial success alone is
somehow a sufficient suggestion to combine, given that the
Office does not indicate from where such knowledge of
commercial success would come. The Office fails to identify
any actual commercial success that would justify its supposed
motivation to combine. A mere conclusory statement without
evidence is insufficient to support an obviousness objection. In
re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336 (Fed. Cir.
2006). See also KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 . . .
[(2007)] (quoting Federal Circuit statement with approval).
PO Appeal Br. 10–11 (emphasis altered). The argument that “nothing in
Tashiro suggests that any game information can be downloaded, nor does
anything in Matsuda suggest that a game may be played cooperatively” is
unpersuasive because “[n]on-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986).
The argument that evidence of commercial success is lacking is
unpersuasive because the Examiner is not relying on a finding of actual
commercial success. Instead, the Examiner found, reasonably in our view,
that a person having ordinary skill in the art would have considered it to be
commercially desirable to modify Matsuda so as to include an interactive
play feature like that described in Tashiro. In our view, the Examiner’s
obviousness rationale comports with the above-quoted KSR principle that “if
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a technique has been used to improve one device, and a person of ordinary
skill in the art would recognize that it would improve similar devices in the
same way, using the technique is obvious unless its actual application is
beyond his or her skill.” KSR, 550 U.S. at 417. See also Perfect Web Tech.,
Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (“[W]hile an
analysis of obviousness always depends on evidence that supports the
required Graham [v. John Deere Co., 383 U.S. 1 (1966)] factual findings, it
also may include recourse to logic, judgment, and common sense available
to the person of ordinary skill that do not necessarily require explication in
any reference or expert opinion.”).
This brings us to the next question, which is whether it further would
have been obvious in view of Tashiro to use Matsuda’s terminal blocks to
display the number of players who “can participate in the game,” as claimed.
As evidence of the obviousness of providing Matsuda’s terminal blocks with
this capability, Requesters and the Examiner rely on Tashiro’s Figure 7,
which is reproduced below.
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Figure 7 exemplifies a game scene to be displayed by one of the driving
game machines to which Tashiro’s invention is applied. Id. at 2:49–51.
Tashiro explains: “The game playing system is adapted to play a car race by
a maximum number of eight players and comprises eight game machines 10
each of which has a display 22 imaging one player’s car as well as the other
seven cars, as shown in FIG. 7.” Id. at 6:1–5 (emphasis added).
That is, when the game is being played by eight players (i.e., the maximum
number allowed), all eight cars will be displayed (rather than just the four
participating cars depicted in Figure 7).
Requesters argue that the claim language is satisfied by Tashiro’s
Figure 7 when the game is being played by the maximum number of eight
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players: “Tashiro teaches both displaying the number of players that can
participate (a maximum of players displayed as eight cars on each player’s
screen) as well as displaying the number of players that are participating
while the game is actually being played.” Req. Resp’t Br. 16. The
Examiner agrees with Requesters’ position, stating:
Patent Owner states “at some point A may equal B”, which in
the context of this paragraph is saying “at some point ‘a number
of people who can participate in the game’ may equal ‘a
number of people who are participating [in] the game’”. The
later phrase is the one Patent Owner asserts Tashiro discloses.
Yet, Patent Owner’s own logic admits the phrases are equal at
some point. Therefore, at some point Tashiro discloses the
claim language according to the Patent Owner.
RAN 49–50.
We agree with Patent Owner that the eight-player example relied on
by Requesters and the Examiner fails to satisfy the claim language, which
requires displaying the number of people who “can play” the game even
when fewer people are actually playing. See PO Appeal Br. 13 (“[A]t best
Tashiro might suggest showing a car for each player who is currently
playing the game . . . , but this does not teach or suggest displaying how may
can participate in the game[.]”).
For the above reasons, we are not persuaded that Matsuda in view of
Tashiro’s Figure 7 describe or suggest using Matsuda’s terminal blocks to
display the number of players who “can participate” in the game.
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For the same reasons, we also are not persuaded by Requester’s
additional reliance (Req. Resp’t Br. 15) on Tashiro’s Figure 17, which is
reproduced below.

Figure 17 exemplifies a prior art multi-player game machine that displays a
plurality of objects to be operated by the respective players in the same
scene. Tashiro 1:29–32. The players can play the same game together in the
same game space by respectively manipulating control members 100A,
100B and 100C on a control panel. Id. at 1:32–35.
Although we do not agree that Tashiro describes displaying the
number of people who can participate in a game, we nevertheless are
sustaining the rejection because we find that it requires no more than
common sense to conclude that a potential player would want to know how
many other players can participate in a multiplayer game (e.g., a racing
game) prior to deciding whether to play the game. See Perfect Web, 587
F.3d at 1329 (“[W]hile an analysis of obviousness always depends on
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evidence that supports the required Graham factual findings, it also may
include recourse to logic, judgment, and common sense available to the
person of ordinary skill that do not necessarily require explication in any
reference or expert opinion.”). For this reason, it would have been obvious,
when Matsuda is modified in view of Tashiro to distribute multiplayer
games, to have the terminal blocks display the number of people who can
participate in the game.
Patent Owner’s argument that “there is no need to display the number
of players who can participate—all an individual needs to do is look around”
(PO Appeal Br. 13) is unpersuasive. Even assuming for the sake of
argument that all of Tashiro’s game machines are located in the same room
and configured to play the same game, this is not the case in Matsuda.
Matsuda’s terminal blocks 2 are located in different homes. Matsuda 5–6.

III. THE PROPOSED REJECTION THAT IS THE SUBJECT OF
REQUESTERS’ APPEAL
Because we are sustaining the rejection of claim 6 for obviousness
over Matsuda in view of Tashiro, we do not reach the merits of the proposed
rejection of claim 6 for obviousness based on Rhoades in view of Bush and
Tsumura (Ground E), which is argued at pages 12-14 of Requesters’ Appeal
Brief.
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IV. DECISION
We affirm the Examiner’s decision that claim 6 is unpatentable under
35 U.S.C. § 103(a) for obviousness over Matsuda in view of Tashiro.
In the event neither party files a request for rehearing within the time
provided in 37 C.F.R. § 41.79, and this decision becomes final and
appealable under 37 C.F.R. § 41.81, a party seeking judicial review must
timely serve notice on the Director of the United States Patent and
Trademark Office. See 37 C.F.R. §§ 90.1 and 1.983.

AFFIRMED

msc

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For Patent Owner:

DAVIS & BUJOLD, P.L.L.C
112 PLEASANT STREET
CONCORD, NH 03301

For Third Party Requesters:

ERISE IP, P.A.
6201 COLLEGE BLVD.
SUITE 300
OVERLAND PARK, KS 66211