Ex Parte 6835887 et al

Patent Trial and Appeal Board

Dec 3, 2013

95000408 (P.T.A.B. Dec. 3, 2013)

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.
95/000,408 10/27/2008 6835887 017594-0000042 9553
909 7590 12/04/2013
Pillsbury Winthrop Shaw Pittman, LLP (NV)
PO Box 10500
McLean, VA 22102
EXAMINER
GAGLIARDI, ALBERT J
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
12/04/2013 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 PATENT TRIAL AND APPEAL BOARD
____________

745, LLC
Third Party Requester, Cross-Appellant and Respondent

v.

ACTIVISION PUBLISHING, INC.
Patent Owner and Appellant
____________

Appeal 2013-007768
Reexamination Control 95/000,408
Patent 6,835,887 B2
Technology Center 3900
____________

Before KEVIN F. TURNER, STEPHEN C. SIU, and JENNIFER L.
McKEOWN, Administrative Patent Judges.

McKEOWN, Administrative Patent Judge.

DECISION ON APPEAL

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Patent Owner Activision Publishing, Inc. (“Patent Owner”) appeals
under 35 U.S.C. §§ 134(b) and 315(a) the Examiner’s decision to reject
claims 1-52.
1
Third Party Requestor 745, LLC (“Requestor”) cross appeals
under 35 U.S.C. §§ 134(c) and 315(b) the Examiner’s decision not to adopt
certain proposed rejections for claims 1-52.
2

We have jurisdiction under 35 U.S.C. §§ 134 and 315.
We heard oral arguments from Patent Owner on August 28, 2013, the
written transcript of which will be entered into the electronic record in due
course.
We AFFIRM-IN-PART.

STATEMENT OF THE CASE
United States Patent 6,835,887 B2 (hereinafter the “’887 Patent”),
issued to John R. Devecka on December 28, 2004 is the subject of the
current inter partes reexamination. With respect to the ’887 Patent claims,
Appellant amended each of the independent claims 1, 8, and 9 and numerous
dependent claims. RAN 7. Claims 10-52 were also added. Id.

1
See Patent Owner’s Appeal Brief, filed October 18, 2011 (hereinafter “PO
App. Br.”), at 1 and 2; Examiner’s Answer, mailed September 6, 2012,
incorporating by reference the Examiner’s Right of Appeal Notice, mailed
May 20, 2011 (hereinafter “RAN”). The Requestor responds to the Patent
Owner’s appeal. See Third Party Requestor’s Respondent Brief, filed
November 18, 2011 (Hereinafter “TPR Resp. Br.”), at 1.
2
See Third Party Requestor’s Appeal Brief, filed October 18, 2011
(hereinafter “TPR App. Br.”), at 1. The Patent Owner also replies to the
Requestor’s Respondent Brief. See Patent Owner’s Rebuttal Brief, filed
October 9, 2012 (Hereinafter PO Reply. Br.), at 1.
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The parent patent, United States Patent 6,369,313 B2 (hereinafter the
“’313 Patent”) of the ’887 Patent, is also on appeal from an inter partes
reexamination. See PO App. Br. 2; TPR App. Br 1. Additionally, the ’887
Patent is the subject of co-pending Reissue Application No. 11/646,617
(filed December 28, 2006). See RAN 7 and PO App. Br. 2, Fn. 1.

THE INVENTION
The ’887 Patent relates to an electronic drum system that includes
electronic drum pads, audio speakers, a visual display, training lights and an
overall control system to simulate, at home or in a coin-operated
environment, the excitement of a live drum or inactive musical jam session
for a user. Abstract; Spec. 1:12-21. The ’887 Patent also describes that
other user-controlled musical input source devices, such as a device looking
like a guitar or keyboard, may be employed. Spec. 3:23-26; 4:36-44.
Amended claim 1, which is illustrative of the appealed subject matter,
reads as follows:
1. (Amended) (Amended) A musical home video game
for enabling users with little or no musical training to
simulate an experience of playing in a rock band, and for
use in conjunction with a video display for displaying
video images related to the musical home video game,
the musical home video game comprising:
a control with selection buttons to enable a user to
enter data and select a mode of play of the musical home
video game from a menu of play mode options displayed
on the video display;
a user-controllable musical input source device for
sensing the user's musical input, the user-controllable
musical input source device including a plurality of
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buttons or activators which enable [a] the user to play the
musical home video game;
means for providing a first output corresponding to
the user's musical input; and [and] a control system for:
causing one or more visual cues to be displayed on
the video display that indicate which of the plurality of
buttons or activators to play and at which times while
playing along to a user selected song, wherein the
appearance of a displayed visual cue corresponds visually
to the appearance of a button or activator of the user-
controllable musical input source device and further
wherein the location of the displayed visual cue
corresponds to the relative location of the button or
activator, such that the user can determine which button
or activator to play based on the visual correspondence
between the visual cue and button or activator;
monitoring and scoring the user's play of the
musical home video game, wherein scoring is based on
correctly playing corresponding ones of the buttons or
activators at a correct time based on the displayed visual
cues; and
[for] controlling a second non-musical output
according to the user's musical play of the musical home
video game; and
wherein the user-controllable musical input source
device comprises a guitar-like device having a plurality
of buttons.
PO App. Br., Claims App’x.

PRIOR ART REJECTIONS
The prior art references, relied upon by Appellant in the proposed
rejections that have not been adopted, are:
Meyer et al. 4,643,421 Feb. 17, 1987
Lewis 5,464,946 Nov. 7, 1995
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Ahead Inc., Welcome to West Feedback Instructions (1994)
(hereinafter “West Feedback, Instructions”) and Virtual Guitar User’s
Manuel (1994) (hereinafter “West Feedback , User’s Manuel”).
3

Mattel Electronics, Inc., Melody Blaster Instructions (1983)
(hereinafter “Melody Blaster”).
Patent Owner also relies on the Supplemental Declaration of Garry E.
Kitchen dated, December 20, 2010 (PO App. Br., Evid. App’x., Ex. 1)
(“Supp. Kitchen Decl.”).
Requestor also relies on the Declaration of Mark S. Izen, dated
September 8, 2009 (TPR App. Br., Ex. 13)(hereinafter “Izen Declaration”).

PATENT OWNER ISSUES
1. Did the Examiner err by rejecting claims 1-52 under 35 U.S.C.
§ 112, first paragraph, as failing to satisfy the written description
requirement?
2. Did the Examiner err by rejecting claims 1-52 under 35 U.S.C.
§ 112, second paragraph, as being indefinite for failing to particularly point
out and distinctly claim the subject matter which applicant regards as the
invention?

3
The published instructions for West Feedback include two separate
documents: Virtual Guitar User’s Manual and Welcome to West Feedback
Instructions. See TPR App. Br., Evid. App’x., Ex. 1. Both documents are
directed to the same West Feedback system. See id.
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REQUESTER ISSUE
Did the Examiner err by not adopting the proposed rejections of
claims 1-52 under 35 U.S.C. § 103(a) as obvious over the cited art?

DISCUSSION
Findings of Fact
The record supports the following findings of fact (FF) by a
preponderance of the evidence.

The ’887 Patent
FF1. The invention generally relates to an interactive electronic drum
system and musical training method. Abstract. The system, using electronic
drum pads, speakers, training lights, and a control system, simulates the
excitement of a live jam session for a user. Id.; see also Spec. 1:8-17. The
system may also include other features, such as stage lights, camera,
microphone, etc., to enhance the playing experience and simulate the
experience of playing in a rock band. Abstract; Spec. 3:34-4:28.
FF2. A user may select from a variety of mode of operations or play
modes. Spec. 2:25-40. For example, the user may select to play along to a
selected song. Spec. 2:34-38. Another mode is playing along with a drum
progression that increases in difficulty. Spec. 2:38-40. In one disclosed
embodiment, the following modes are identified: “Jam to CD”, “Jam
Against the Machine”, “Jamming Music”, “Jam Lessons” and “Jam Alone.”.
Spec. 7:51-55 and Fig. 5; see also Spec. 6:10-22.
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FF3. Instruction information is provided to beginning users to assist
in learning how to use the system. Spec. 3:34-42. For example, cueing
LEDs associated with the drum pads or alternatively a video representation
on the display are used to instruct a user to play the correct sequence and
striking of the drum pads. Spec. 2:25-30; see also Spec. 5:42-46 (describing
use of cuing LEDS on the drum pads to visually guide a user on which drum
to play and when to play it).
FF4. Fig. 1, reproduced below, depicts an exemplary drum set layout.

Drum Set Layout Including Drum Pads with Portions Identified
as Cueing LEDs for Left and Right Hand Striking is Depicted Above.
Spec. Fig. 1, 2:49-51, 3:26-42.
FF5. As shown in Fig. 1, the drum set layout includes electronic drum
pads for the hi-hat cymbal, snare, toms 1-4, crash cymbal, and ride cymbal,
as well as foot pedals or activators for the bass drum and the hi-hat cymbal.
Spec. 3:9-15 and Fig. 1. Each electronic drums pad includes a sensor that
senses when the pad is struck. Spec. 3:17-24.
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FF6. A foot pedal or activator may also be provided to add a variety
of additional sound effects. Spec. 3:9-15. Additionally, as shown in Fig. 1,
either a drum pad or a foot pedal can be employed for a hi-hat cymbal. Id.
FF7. The Specification describes that the system may be adapted to
other formats, with different input sensors, such as a guitar with buttons or a
keyboard with keys. Spec. 4:36-44; see also Spec. 3:24-28 (identifying
other formats may be employed, such as a guitar-like device, a keyboard, or
a simple switch arrangement).
FF8. Fig. 1 also shows exemplary cuing LEDs or indicia 21A-29A
and 21B-29B on the drum pads to visually guide the user. In particular, the
lights will cue the user to strike the appropriate pads or pedals of the drum
set layout at the appropriate time. Spec. 3:36-43; see also 2:26-29
(describing that the cuing LEDs or other indicia associated with the drum
pads will guide the user in the correct sequence and striking of the drum
pads).
FF9. Instructional guidance may also be provided through use of the
display. Specifically, at the “display will preferably be utilized to provide
user cues and instruction information.” Spec. 4:7-9. The Specification, in
the Summary of the Invention, further describes that a user selects a play
mode through an interactive series of menus and then a video representation
on the display may guide the user in the correct sequence and striking of the
drum pads. Spec. 2:28-31.
FF10. In generally describing the operation of the system, the
Specification states that “the correct order or rhythms of striking the drums
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and graduated steps of rhythmical sequences may also be displayed on the
[display].” Spec. 5:52-64.
FF11. Fig. 5 reproduced below, depicts a way of presenting options
to be selected by a user and also an exemplary manner of curing a user.

Display Screen Depicting the Drum Pad Layout with Corresponding Drum
Names and Menu Selection Instructions is Depicted Above.

Spec. 7:59-61; 9:24-29; and Fig. 5. In particular, when a user selects the
“jam against the machine mode,” the display “such as that discussed in the
context of FIG. 5 may also be used to highlight the correct pad or pedal and
striking had [sic] or foot.” Spec. 9:24-29.
FF12. During a “sound check,” a user will also be cued through use
of the display. Spec. 8:1-12. The display will depict “both the name of the
pad or pedal and the shape and location of the drum pad or pedal with
relation to the other pads may be displayed in the correct sequence to
illustrate the desired warm up sequence.” Id.

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FF13. In some play modes, a user’s performance may be rated. Spec.
6:8-11. In describing one embodiment, the Specification states that “the
user's score is preferably based on repetition, accuracy and speed. Scoring
may be based on a point system with a value for each correct strike….”
Spec. 9:32-35.
FF14. The system may accept various payment forms, including a
credit card, debit card, or smart card. Spec. 7:17-21.
FF15. While the Specification describes that the system is a money
operated arcade game, it also notes that the system can be implement in the
home environment.” Spec. 4:28-40; see also Spec. 1:12-15 (identifying the
invention is related to a method and apparatus suitable for use in a home
video game).
FF16. The Specification describes additional enhancements to further
simulate the experience of playing in a rock band. For example, a display
may show a crowd scene and speakers may play the sound of a crowd
starting to clap and cheer as it occurs during a concert. Spec. 7:21-28; see
also Spec. 8:35-37 and 9:30-31. Lighting may be arranged to simulate a
live concert atmosphere and may be controlled in response to the user’s
activity. Spec. 8:39-43. Additionally, a camera may record a user’s
performance. Spec. 3:65-4:3.
FF17. The Specification describes that a second or younger, less
coordinated user to enjoy the system by using a joystick or other activator
and a button or buttons to play sounds. “For example, a left to right or back
and forth movement of the joystick 33 may allow a second user to make
other sounds such as hi-hat, maraca, tambourine, or other sounds. The
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button or buttons 34 may allow the second user or a less advanced user to
activate a sequence of drum rhythms or the like.” Spec. 3:29-35.
FF18. The Specification further recites that:
While the above described components are shown in the
drawings and discussed in the context of a presently preferred
embodiment of the invention, it will be recognized that similar
and other components may be added to enhance the system or
that certain of these components may be subtracted to reduce
the cost of the system.

Spec. 4:23-27.

West Feedback
FF19. West Feedback discloses instructions for playing a musical
home video game designed for use with a personal computer. A person
plays West Feedback by strumming a guitar-like musical input device called
the Virtual Guitar in time with a song. West Feedback, User’s Manual p. 2.
FF20. West Feedback states that “[t]he Virtual Guitar looks and feels
like an electric guitar, except it finds the right notes and chords for you. So
all you have to learn is the rhythm of the songs.” West Feedback, User’s
Manual p.1. Moreover, a user “play[s] the Virtual Guitar like a traditional
electric guitar, except you don’t have to finger the notes and chords. The
Virtual Guitar finds the right notes and chords for you. All you have to learn
is the rhythm of the songs.” West Feedback, User’s Manual p.16.
FF21. The game includes a “status bar” showing the song’s rhythm,
as well as the rhythm of the player attempting to play the song.
Additionally, a Reputation Score is also displayed and scores how well the
user has played the rhythm. West Feedback, Instructions pp 13-14.
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Melody Blaster
FF22. Melody Blaster discloses instructions for playing a musical
home video game designed for the Mattel Intellivision game console. The
main game screen depicts a piano keyboard with a red reference line above
it. Melody Blaster, p. 3.
FF23. A player uses a piano keyboard controller with keys
corresponding to the keyboard displayed on the screen. Notes fall from the
top of the screen toward the keyboard, and a player must press the
corresponding key when a note crosses the reference line. A laser beam will
emerge from the key actually pressed, and if the correct key was pressed, the
laser will strike the falling note and the television speakers will sound the
note. The more accurate the player is, the higher the score earned. Melody
Blaster, pp. 3-4.

Analysis
PATENT OWNER ISSUE #1
Claims 1, 8, and 9
Based on the record before us, we find that the Examiner erred in
rejecting claims 1, 8, and 9 under 35 U.S.C. §112, first paragraph for failing
to comply with the written description requirement. In particular, we
disagree with the Examiner that there is no support for the visual cues to
correspond in visual appearance and relative location of the button or
activator of the user-controllable musical input source device. See RAN 10-
12.
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The Examiner here admits that the Specification supports displaying
visual cues corresponding in appearance to drum pads in a sound check
mode, but the Examiner rejects that this teaching would apply to any other
disclosed play mode. RAN 12. In particular, the Examiner states “such
performance of a sound check has nothing to do with gameplay or gameplay
instruction, and is not performed while playing along to a user selected
song.” Id. According to the Examiner, the Specification only supports
using “lens” shape visual cues while playing along to a song. RAN 11-12
(citing Spec. Figs. 1 and 5); see also RAN 22-23. We disagree.
“[T]he test for sufficiency [of the written description] is whether the
disclosure of the application relied upon reasonably conveys to those skilled
in the art that the inventor had possession of the claimed subject matter as of
the filing date.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351
(Fed. Cir. 2010) (en banc). “And while the description requirement does not
demand any particular form of disclosure, or that the specification recite[s]
the claimed invention in haec verba, a description that merely renders the
invention obvious does not satisfy the requirement.” Id. at 1352 (internal
citations omitted).
The Specification here repeatedly describes that the display may be
used to visually cue the user, without any limitation as to the mode of play.
See FF3 and FF9-12. For example, after identifying that a user may select a
play mode through interactive menus, the Specification describes “a video
representation on the display may guide the user in the correct sequence and
striking of the drum pads.” Spec. 2:28-31. The Specification also while
generally describing features of the disclosed display, states that the “display
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will preferably be utilized to provide user cues” (FF9) and that the correct
order or rhythms of striking the drums may be depicted on the display.
FF10.
Moreover, visual cues corresponding in appearance to the drum pads
are used while playing in different play modes. For example, in the “jam
against the machine mode,” the display “such as that discussed in the context
of FIG. 5 may also be used to highlight the correct pad or pedal and striking
had [sic] or foot.” FF11. Additionally, as the Examiner acknowledges
(RAN 12), the Specification expressly discloses using the name, shape, and
location of a drum pad, as shown in Fig. 5, to visually cue a user during a
warm up sequence. FF12.
While the Specification only identifies using these visual cues
corresponding in appearance to the drum pads in two play modes, namely
the jam against the machine mode and the warm-up sequence, we see no
reason why the described visual cues would be limited to only those play
modes when Specification repeatedly and consistently describes using visual
cues on a display to guide the user. See FF3 and FF9-12. Together, these
teachings demonstrate that a skilled artisan would understand that the
invention included, and thus the Specification supports, displaying visual
cues corresponding in appearance and location to the drum pads to visually
cue a user, regardless of play mode.
These teachings are also at odds with the Examiner’s finding that the
“appearance” of the visual cues is limited only to a “lens shape.” See
RAN 14. The highlighted “lens shape” portion of the drum pad is merely
one example provided of a visual cue. FF4 and FF8; see also PO App. Br. 9
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10. By displaying the corresponding name, shape, location, and indicator
lenses locations in Figs. 1 and 5, the Specification also discloses that the
visual cues correspond in “appearance” to the drum pads, i.e. the activators
of the drum set. FF4 and FF11. Therefore, we disagree with the Examiner
that the Specification fails to support using visual cues that correspond in
“appearance” to the button or activators of the musical input source device.
We also agree with the Patent Owner that support would not be
limited to strictly the visual cues matching a drum pad of a drum set. The
drum pads are the activators of the disclosed drum set, i.e. musical input
source device. FF5; PO App. Br. 15. Further, the Specification identifies
that other musical input source devices with activators of other forms may
be employed, such as a guitar with buttons or a keyboard with keys. FF7;
PO App. Br. 15. Thus, because there is support for visual cues
corresponding in appearance to the drum pads and for replacing the drums
pads with alternative buttons or activators, we agree with the Patent Owner
that the Specification supports displaying visual cues corresponding in
appearance and relative location to the buttons or activators of the musical
input source device.
We similarly reject the Examiner’s reasoning that because the
Specification only expressly identifies a guitar-like device with buttons, a
guitar with activators is not supported. See RAN 13. As the Patent Owner
points out, the Specification discloses musical input source devices
including activators. PO App. Br. 15. Moreover, a skilled artisan would
know, buttons are activators. Contrary to the Examiner’s assertions, the
mere reference of activators as an alternative to pedals does not alter the
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plain and ordinary meaning of an activator. See RAN 16. As such, we agree
with the Patent Owner that the Specification sufficiently supports the
claimed guitar-like device may include buttons or activators.
Finally, we disagree with the Examiner’s finding of no support for the
claimed scoring limitation. The Examiner admits that “[t]he disclosure
suggests that scoring is based on repetition, accuracy and speed.” RAN 13.
The Examiner explains though that this is insufficient to support scoring
based on accurate timing because “accuracy does not necessarily suggest
hitting a sensor or button at the right time since it could merely mean hitting
the right sensor or button.” RAN 13. As the Patent Owner points out, the
Specification discloses that the visual cues instruct a user what drum pad to
play and when to play it (FF8) and that the user may be rated on playing the
visual indicators. PO App. Br. 17-18; FF13. Together, this demonstrates
that the Specification supports scoring based not only on striking the correct
input sensor but also striking it at the correct time.
Therefore, we agree with the Patent Owner that the Examiner erred in
rejecting claims 1, 8, and 9 under 35 U.S.C. §112, first paragraph for failing
to comply with the written description requirement. Accordingly, we
reverse the rejection as to these claims.

Claims 2-6, 10-11, 14, 18-32, 36, and 40-52
We likewise disagree with the Examiner regarding additional
dependent claims. Specifically, based on the record before us, we find that
the Examiner erred in rejecting dependent claims 2-6, 10-11, 14, 18-32, 36,
and 40-52 under 35 U.S.C. §112, first paragraph for failing to comply with
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the written description requirement. RAN 13-15. The Examiner here fails
to consider the teachings of the Specification as a whole and at times
disregards express teachings of the Specification.
For example, with respect to claims 11 and 32, the Examiner states
that there is no support for an additional activator for generating sound
effects. RAN 14. According to the Examiner, the Specification only
discloses, and thus supports, an additional activator in the context of a drum
pad. RAN 14. To the contrary, the Specification expressly describes that
while the features are described with respect to a drum set layout, alternative
musical input source devices, such as a guitar-like device with buttons, may
be employed. FF7. In other words, the described features of the drum set
may be implemented in the other disclosed musical input source devices,
such as the guitar-like device.
The Examiner uses similarly flawed reasoning to support the
remaining rejections of the cited dependent claims. Therefore, for at least
the reasons identified by the Patent Owner, we agree with the Patent Owner
that the Examiner erred in rejecting claims 2-6, 10-11, 14, 18-32, 36, and 40-
52 under 35 U.S.C. §112, first paragraph for failing to comply with the
written description requirement. Accordingly, we reverse the rejection as to
these claims.

Additional User-controllable Musical Input Source Device Claims (Claims
7, 12, 13, 15- 17, 33- 35 and 37-39)
We disagree, however, with the Patent Owner with respect to the
additional input device claims. Specifically, based on the records before us,
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we find that the Examiner did not err in rejecting claims 7, 12, 13, 15- 17,
33- 35 and 37-39 as failing to comply with the written description
requirement.
The Patent Owner argues that the Specification supports adding
additional musical input source devices, including various
types/combination of musical input source devices, to enable additional
users to play the game. PO App. Br. 17-19. We disagree.
Notably, in supporting its argument, the Patent Owner erroneously
expands on what is disclosed in the Specification. For example, the Patent
Owner relies on the following description:
By way of example, a joystick or other activator 33 and a
button or buttons 34 may be employed to allow a second user or
a younger, less coordinated user to enjoy the system. For
example, a left to right or back and forth movement of the
joystick 33 may allow a second user to make other sounds such
as hi-hat, maraca, tambourine, or other sounds. The button or
buttons 34 may allow the second user or a less advanced user to
activate a sequence of drum rhythms or the like.

Spec. 3:28-36.
According to the Patent Owner, this demonstrates that two or more
musical input source devices are supported. PO App. Br. 17-18. However,
as the Examiner points out, the Specification here merely describes that a
second or less coordinated user may use a limited device, not a musical input
source device such as the disclosed guitar-like or keyboard-like devices, but
a joystick or other activator. RAN 29; FF17.
We are not persuaded by the Patent Owner that the Specification
supports replacing the joystick with a musical input source device. The
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Specification describes musical input source devices as devices that “look
like” instruments to simulate playing of music for the user and include
numerous input mechanisms, e.g. drum pads and pedals of a drum set, keys
of a keypad, and buttons on a guitar. FF17; see also RAN 13-14. In
contrast, the Specification discloses a joystick, as shown in Fig. 1, with a
single motion or activation with a button. Id.
Moreover, the described participation by the second user is also
limited. A single movement on the joystick can make sounds or a button or
buttons can activate a sequence of drum rhythms. FF17. The Specification
thus does not disclose the second using playing a musical input source
device or playing the game. See RAN 13-14. We therefore agree with the
Examiner that the Specification falls short of supporting the claimed
additional musical input source devices enabling play by additional users.
The Patent Owner further points to Fig. 2,
4
depicting a drum set
layout as well as a joystick, as supporting additional musical input source
devices. PO App. Br. 17. As discussed above though, we are not persuaded
that the Specification demonstrates to a skilled artisan that a joystick may be
replaced with a musical input source device. In particular, the Specification
only equates a joystick to an activator, not a musical input source device.
We are also not persuaded by the additional arguments and evidence
presented by the Patent Owner. PO App. Br. 18. In particular, the Patent

4
During oral argument, Patent Owner also pointed to the guitar and
keyboard additionally shown in Fig. 2 of the’887 Patent. Transcript of
August 28, 2013 Oral Hearing at 13. These devices though are presented as
alternatives to the depicted drum set. See ’887 Patent, Fig. 2 (identifying the
drum set as 20, the guitar as 20ʹ, and the keyboard as 20ʹʹ).
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Owner’s reliance on the disclosure of other musical input source devices is
also misplaced. These other musical input source devices, such as a guitar-
like device or keyboard, are presented as alternatives to the drum set. FF7.
The Specification states that while the drum set is preferred, “the present
invention may be adapted to other formats,” including for example a guitar-
like device having buttons or a keyboard. Spec. 4:43-50; FF4.
Finally, the Patent Owner also relies on a broad, generic statement
about providing additional components to enhance the system. PO App.
Br. 18. Notably absent, though, is any discussion of additional musical input
source devices or additional users. FF18.
Accordingly, we affirm the rejection of claims 7, 12, 13, 15- 17, 33-
35 and 37-39 as failing to comply with the written description requirement.

PATENT OWNER ISSUE #2
Based on the record before us, we find the Examiner erred in rejecting
claims 1-52 under 35 U.S.C. 112, second paragraph as indefinite.
As an initial matter we note that the Examiner here seems to
erroneously apply the written description analysis. RAN 26-27. In
particular, the Examiner states that there is allegedly insufficient “support”
for corresponding appearance of the visual cues and input sensors because
there is only support for corresponding shape. Id. The test for definiteness,
however, is whether “those skilled in the art would understand what is
claimed when the claim is read in light of the specification.” Orthokinetics,
Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986)
(citations omitted).
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As the Patent Owner points out, appearance is a commonly
understood term having a plain meaning that would be understood by a
skilled artisan. PO App. Br 26-27; PO Reply Br. 3; RAN 28 (defining
appearance as “the outward or visible aspect of a person of [sic] thing”); see
also Webster’s II New College Dictionary 1995 (defining appearance as
“outward aspect”). The Specification also supports this meaning. For
example, the appearance of the visual cues shown in Fig. 5 corresponds to
the appearance of the drum pads shown in Fig 1. See Figs. 1 and 5
(depicting the same drum pad name, shape, location, and indicator lights).
Therefore, for at least the reasons identified by the Patent Owner, we are
persuaded that the Examiner erred in finding “appearance” indefinite.
Accordingly, we reverse the rejection of claims 1-52 under 35 U.S.C.
112, second paragraph, as being indefinite for failing to particularly point
out and distinctly claim the subject matter which applicant regards as the
invention.

REQUESTOR ISSUE
Based on the record before us, we find the Examiner has not erred by
not adopting the proposed rejections of claims 1-52 under 35 U.S.C.
§ 103(a) as obvious over the cited art.
The Examiner explains that while West Feedback and Melody Blaster
teach displaying visual cues to a user, those cues do not correspond visually
to the appearance of the input sensor or that the location of the displayed cue
corresponds to the relative location of the input sensor. RAN 18-21. Thus,
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according to the Examiner, the cited combination does not render the
claimed invention obvious. Id.
On the other hand, Requestor asserts that the Examiner erred by
failing to consider Melody Blaster’s displayed keyboard keys as visual cues.
TPR App. Br. 5-6. Requestor maintains that these keys, in conjunction with
the falling musical notes and the horizontal red line, are visual cues that
correspond visually to the appearance of the input sensor. Id.
The Requestor points out that the falling musical notes by themselves
are insufficient to be a visual cue for the user. Id. More specifically,
Requestor argues that:
[T]he juxtaposition of a falling note and a particular displayed
keyboard key provides the sensor-selection function, and
comparison of the positions of the falling note and the
horizontal line provides the sensor-timing function. Because the
Examiner admits that Melody Blaster teaches visual cues that
provide these functions, the keyboard keys and the horizontal
line also should be viewed as visual cues or, at least, as part of a
visual cue.
Id.
As discussed above, Melody Blaster teaches falling musical notes that
cue a user which key to strike when the note approaches a horizontal red
line. FF23. Thus, it is the falling musical note’s location that cues the user
which key to strike, not the key itself. Further, assuming en arguendo that
the keyboard keys were part of a visual cue, the complete visual cue as a
whole, that is the falling musical note, the horizontal red line, and the
displayed keyboard keys, would not visually correspond to the appearance of
the input center, i.e., the keyboard key.
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Moreover, the combination of West Feedback and Melody Blaster
would teach away or alter the principle operation of West Feedback. West
Feedback expressly teaches that a user does not have to learn the notes and
chords, but must only learn the rhythm of the songs to play the game. FF20.
Melody Blaster, on the other hand, precisely focuses on identifying which
keyboard keys to play. FF23.
Thus, because West Feedback expressly teaches that a user not having
to learn the keys is an improvement of the game, a skilled artisan would
recognize that West Feedback teaches away from the combination with
Melody Blaster. In re Gurley, 27 F.3d 551, 53 (Fed. Cir. 1994)(identifying
that a reference teaches away when a person of ordinary skill, upon reading
the reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant).
As such, we agree with the Examiner that the cited combination fails
to render the claimed invention obvious. The additionally cited references
also do not cure the deficiencies of the combination of West Feedback and
Melody Blaster.
Accordingly, we sustain the Examiner’s decision not to adopt the
proposed rejection of claims 1-52.

DECISION
The Examiner’s decision to reject claims 1-6, 8-11, 14, 18-32, 36, and
40-52 is reversed, but the Examiner’s decision to reject claims 7, 12, 13, 15-
17, 33- 35 and 37-39 is affirmed.
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Additionally, the Examiner’s decision to not adopt the proffered
rejections of claims 1-52 is affirmed.
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See 37 C.F.R. § 41.79.

AFFIRMED-IN-PART

THIRD-PARTY REQUESTER:
Bromberg & Sunstein, LLP
125 Summer Street
Boston, Ma 02110-1618

PATENT OWNER:
Pillsbury Winthrop Shaw Pittman, LLP (NV)
PO Box 10500
McLean, VA 22102