Ex Parte 6875021 et al

Patent Trial and Appeal Board

May 28, 2015

90009520 (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.
95/001,237 09/22/2009 6875021 NINT-001/00US
144575-2016
9171
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.
90/009,520 08/28/2009 6875021 ADC021 9714
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 2014-0091322
Reexaminations 95/001,237 and 90/009,520 (merged)
United States Patent 6,875,021 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 September 6, 2013, at 2 n.1.
2 This appeal is related to pending PTAB Appeals 2014-009133 and 2014-
009134 (hereinafter “’9133 Appeal” and “’9134 Appeal”). Decisions on
Appeal in all three appeals are being mailed concurrently.
3 This patent (hereinafter “’021 patent”) issued to Takeya Okamoto on
April 5, 2005, based on Application 10/713,713, filed on November 14,
2003. The ’021 patent is the seventh in a chain of U.S. applications
beginning with Application 08/232,862 (now Patent 5,489,103), filed on
April 25, 1994. ’021 patent 1:5–17. The ’021 patent expired on April 25,
2014.
Appeal 2014-009132
Patent 6,875,021 B2
Merged Reexaminations 90/009,520 and 95/001,237

2
Before JOHN C. MARTIN, STEPHEN C. SIU, and IRVIN E. BRANCH,
Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL
Patent Owner appeals the Examiner’s rejections of original patent
claims 1–11. Patent Owner’s Appeal Brief (hereinafter “PO Appeal Br.”),
filed on September 12, 2013, at 4. Third Party Requesters (“Requesters”)
filed a cross-appeal challenging the Examiner’s determination not to reject
claims 1, 5, 8, and 11 on an additional ground. Req. Appeal Br. 3 (III.B).
We have jurisdiction under 35 U.S.C. §§ 6, 134, and 315.
We AFFIRM the Examiner’s decision that claims 1–11 are
unpatentable over the prior art.
We also AFFIRM the Examiner’s decision not to enter the proposed
rejection that is the subject of Requesters’ appeal.

I. STATEMENT OF THE CASE
A. Related Litigation and Reexamination Appeals
The ’021 patent involved in this Appeal (hereinafter “’9132 Appeal”)
and the patents involved in the related ’9133 and ’9134 Appeals are the
subjects of stayed litigation styled ADC Technology, Inc. v. Microsoft Corp.,
et al., No. 2:08-CV-01579-RSM (W.D. Wash.). PO Appeal Br. 3; Req.
Appeal Br. 3.
Appeal 2014-009132
Patent 6,875,021 B2
Merged Reexaminations 90/009,520 and 95/001,237

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The ’021 patent is the seventh in a chain of seven U.S. patents.
Specifically, the ’021 patent identifies itself as:
a Divisional of U.S. application Ser. No. 10/307,886 filed on
Dec. 2, 2002, now U.S. Pat. No. 6,702,585 B2 [hereinafter
“’585 patent”], which is a Divisional of U.S. patent application
Ser. No. 09/733,541, filed Dec. 8, 2000, now U.S. Pat. No.
6,488,508 B2 [“’508 patent”], which is a Divisional of U.S.
patent application Ser. No. 09/109,784, filed Jul. 2, 1998, now
U.S. Pat. No. 6,193,520 B1 [“’520 patent”], which is a
Continuation-In-Part of U.S. patent application Ser. No.
08/642,560, filed May 3, 1996, now U.S. Pat. No. 5,775,995
[“’995 patent”], which is a Divisional of U.S. patent application
Ser. No. 08/555,400, f[il]ed Nov. 9, 1995, now U.S. Pat. No.
5,735,744, which is a Continuation-In[-]Part of U.S. patent
application Ser. No. 08/232,862, filed Apr. 25, 1994, now U.S.
Pat. No. 5,489,103 [“’103 patent”].
’021 patent 1:5–17 (emphasis added).
The patents in the U.S. patent chain claim foreign priority based on
Japanese patent document No. 5-108303, filed on May 10, 1993. As
explained below, the Examiner has found that the ’021 patent claims are
entitled to benefit of this foreign filing date and thus predate Roskowski,
which is asserted as a reference by Requesters.4
The ’585 patent, which is the parent of ’021 patent, is involved in
merged ex parte and inter partes reexaminations 90/009,522 and
95/001,236, which are the subjects of the ’9134 Appeal.

4 Roskowski, et al., U.S. Patent 5,624,316, issued on April 29, 1997, based
on an application filed on June 6, 1994. Request Ex. K.
Appeal 2014-009132
Patent 6,875,021 B2
Merged Reexaminations 90/009,520 and 95/001,237

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The ’508 patent, which is the grandparent of the ’021 patent, is
involved in merged ex parte and inter partes reexaminations 90/009,521 and
95/001,234, which are the subjects of the ’9133 Appeal.
The ’520 patent (i.e., the great-grandparent of the ’021 patent) was
involved in merged ex parte reexaminations 90/009,524 and 90/010,666,
which are the subject of a January 11, 2013, “Decision on Appeal” in BPAI
Appeal 2012-012256, affirming various rejections.5 The affected claims
were canceled by Ex Parte Reexamination Certificate US 6,193,520 C1,
which issued on July 23, 2014.
The ’995 patent (i.e., the great-great-grandparent of the ’021 patent)
was involved in merged ex parte reexaminations 90/009,523 and
90/010,663, which were the subject of a November 10, 2011, “Decision on
Appeal” in BPAI Appeal 2012-000193, reversing all rejections. Ex Parte
Reexamination Certificate 5,775,995 C1 issued on April 24, 2012.
The ’021, ’585, and ’508 patents, which are the subjects of this appeal
and the ’9133 and ’9134 Appeals, respectively, expired on April 25, 2014.

B. These Merged Reexamination Proceedings
The original ’021 patent claims consist of claims 1–11, of which
claims 1, 5, and 8 are independent claims.

5 Adhered to in a Decision on Request for Rehearing, mailed on July 30,
2013. Also, an “Errata” was mailed on January 2, 2014.
Appeal 2014-009132
Patent 6,875,021 B2
Merged Reexaminations 90/009,520 and 95/001,237

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As explained in greater detail below, original claims 1–11 were
amended and supplemented by new claims during an initial portion of the
merged proceedings. However, original claims 1–11 have been reinstated
and all of the new claims canceled, thereby leaving only original claims 1–
11 for our consideration.
Ex parte reexamination of claims 1, 5, 8, and 11 was requested by
Patent Owner in a July 10, 2009, “Request for Reexamination of USP
6,875,021.” Inter partes reexamination of claims 1–11 was requested in a
“Request for Inter Partes Reexamination of U.S. Patent 6,875,021”
(hereinafter “Request”), filed by Requesters on September 22, 2009.
The Examiner has found that the ’021 patent claims are entitled to
benefit of the May 10, 1993, date of Japanese patent document 5-108303.
Order Granting/Denying Request For Inter Partes Reexamination
(hereinafter “Inter partes Order”), mailed on December 18, 2009, at 5.
The ex parte and inter partes proceedings were merged by a
“Decision, Sua Sponte, to Merge Reexamination Proceedings,” mailed on
April 14, 2010. The papers discussed below are in the file of the inter partes
proceeding.
The rejections that have been proposed by Requesters or initiated by
the Examiner during these merged reexamination proceedings are identified
as grounds A–BM, which arose in the manner described below.
The rejections of original claims 1–11 proposed in the Request (at
pages i–iv) are identified as grounds A–V.
Appeal 2014-009132
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A first Non-Final Office Action, mailed on August 26, 2010, adopted
(at pages 6–9, 13, and 14) only grounds A–H, J, and S and declined (at
page 10) to adopt ground K (anticipation by Roskowski) because
“Roskowski fails to overcome Okamoto’s (USPN 6,875,021) priority date
and is therefore not applicable as prior art.”
Patent Owner responded by amending each of the independent claims
(namely, claims 1, 5, and 8) and adding new claims 12–27. Amendment and
Response (hereinafter “PO Sept. 2010 Resp.”), filed on September 28, 2010,
at 2–6.
Requesters responded by proposing new grounds A–N of rejection of
the amended and new claims. Third Party Requestors’ Comments
Subsequent to Patent Owner’s Response Regarding Inter Partes
Reexamination of U.S. Patent No. 6,875,021 (hereinafter “Req. Oct. 2010
Comments”), filed on October 25, 2010.6 These proposed new grounds A–N
were redesignated as grounds W–AJ by the Examiner in a first Action
Closing Prosecution (“ACP”), mailed on January 18, 2011, at 2.
Following a first Right of Appeal Notice (“RAN”), mailed on April 4,
2011, and the filing of appeal and respondent briefs on July 18 and
August 18, 2011, the Examiner issued a second Non-Final Office Action
(hereinafter “June 2012 NF Action”), mailed on June 4, 2012. The

6 An accompanying October 22, 2010, “Declaration of Dr. Michael Zyda” is
not relied on in either of Requesters’ briefs and thus will be given no further
consideration.
Appeal 2014-009132
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Examiner (at pages 26–29) entered proposed grounds of rejection AG–AJ of
the amended and new claims and (at pages 29–30) entered new Examiner-
initiated rejections identified as grounds AK–AM.
In a July 11, 2012, “Response to Office Action,” Patent Owner
reinstated (at pages 2–4) original claims 1–11 and replaced (at pages 4–6)
previously entered new claims 12–27 with a different set of new claims
12–31.
Requesters on August 6, 2012, filed “Third-Party Requesters’
Comments Subsequent to Patent Owner’s Response Under 37 C.F.R.
§ 1.947” (“Req. Aug. 2012 Comments”), which:
(1) requested (at page 24 sec. III.A) reinstatement of withdrawn
grounds A–H, J, and S (listed in a table) (later redesignated by the Examiner
as AN–AW);
(2) proposed (at page 25–27, secs. III.B–III.E) new rejections that the
Examiner later designated as grounds AX–BA (of which ground AX is for
anticipation by Roskowski); and
(3) proposed (at pages 27–48) additional rejections identified as
grounds BB–BM.
In a second ACP, mailed on March 5, 2013, the Examiner:
(i) reinstated (at pages 8–14) previously withdrawn grounds A–H, J, and S
(redesignating them as grounds AN–AW), (ii) repeated grounds AG–AJ (id.
at 7), and (iii) adopted (at pages 16–20) grounds BB–BG and BJ–BM.
Appeal 2014-009132
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Patent Owner’s April 9, 2013, “Response to Office Action,” re-
presented original claims 1–11 and omitted (thereby effectively proposing to
cancel) previously added new claims 12–31.
In a second RAN (hereinafter “May 2013 RAN”), mailed May 24,
2013, the Examiner:
(1) approved (at page 1) entry of Patent Owner’s proposed
amendment and noted (id. at 1, box 2) the resulting cancelation of new
claims 12–31;
(2) maintained (at pages 8–16) the rejections of original claims 1–11
on only grounds AG–AJ, AN–AW, BB, and BE; and
(3) repeated (at pages 14–15) the decision not to adopt proposed
ground AX (anticipation by Roskowski).
The Examiner’s Answer, which incorporates the RAN by reference,
was mailed on March 5, 2014.
“Patent Owner’s Rebuttal Brief” (“PO Reb. Br.”) was filed on April 7,
2014.
The ’021 patent expired on April 25, 2014.

C. The Rejections Entered by the Examiner
The entered rejections that are the subject of Patent Owner’s appeal
are set forth in the following tables:

Appeal 2014-009132
Patent 6,875,021 B2
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Entered Grounds Under 35 U.S.C. § 102
Ground Reference Claims May 2013 RAN
page
AN Rhoades7 1–4 and 8–10 9
AO Griswold8 1–11 9
AP Hornbuckle9 1–11 10
AQ Shear10 1–11 11
AR Thacher11 1–11 11
AS Matsuda12 1 and 4–11 12
AT Oseki13 1 and 4–11 12
AU Kato14 1 and 4–11 13
AV Wiedemer15 1–3, 5, 6, 8, 9, and 11 13

7 Rhoades U.S. Patent 5,181,107, which issued on January 19, 1993.
Request Ex. A.
8 Griswold U.S. Patent 5,940,504, issued on August 17, 1999. Request
Ex. B.
9 Hornbuckle U.S. Patent 5,497,479, issued on March 5, 1996. Request
Ex. C.
10 Shear U.S. Patent 5,410,598, issued on April 25, 1995. Request Ex. D.
11 Thacher U.S. Patent 5,083,271, issued on January 21, 1992. Request
Ex. E.
12 Matsuda, Japanese Patent Publication H3-149693, published on June 26,
1991. Request Ex. F. Our understanding of Matsuda is based on the
translation provided by Requesters. Id.
13 Oseki, Japanese Laid-Open Patent Application 4-158441, published on
June 1, 1992. Request Ex. G. Our understanding of Oseki is based on the
translation provided by Requesters. Id.
14 Kato, Japanese Laid-Open Application 2-113463, published on
January 14, 1992. Request Ex. H. Our understanding of Kato is based on
the translation provided by Requesters. Id.
15 Wiedemer, U.S. Patent 4,905,280, issued on February 27, 1990. Request
Ex. J.
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Entered Grounds Under 35 U.S.C. § 103(a)
Ground References Claims June 2012 NF
Action page
May 2013
RAN page
AG Hornbuckle +
Tashiro16
1–5 and
8–11
26 8
AH Matsuda17 +
Stokey18
5–7 27 8
AI Kato + Stokey 5–7 27 8
AJ Kato +
Dobrow19
5–7 28 8
AW Wiedemer +
Suzuki20
4, 7, and
10
N/A 14
BB Matsuda +
Tsumura21
1–11 N/A 16
BE Hornbuckle +
Tsumura
1–11 N/A 17

16 Tashiro, et al., U.S. Patent 4,998,199, issued on March 5, 1991. Req. Oct.
2010 Comments Ex. C.
17 Matsuda, Japanese Laid-Open Application H3-149693, published on
June 26, 1991. Request Ex. F.
18 Nancy L. Stokey, Intertemporal Price Discrimination, The Quarterly
Journal of Economics 355-71 (Aug. 1979). Req. Oct. 2010 Comments Ex.
E.
19 Megumi Komiya & Barry Litman, The Economics of the Prerecorded
Videocassette Industry, in Social and Cultural Aspects of VCR Use 25-44
(Julia R. Dobrow ed., Lawrence Erlbaum Associates, Inc. 1990). Req. Oct.
2010 Comments Ex. F.
20 Suzuki, U.S. Patent 5,157,643, issued on October 20, 1992. Req. Oct.
2010 Comments Ex. G.
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D. The Appealed Proposed Rejection Not Adopted by the Examiner
The sole nonadopted rejection that is the subject of Requesters’ appeal
is the proposed rejection of claims 1, 5, 8, and 11 under 35 U.S.C. § 102(e)
for anticipation by Roskowski (Ground AX). Req. Appeal Br. 7. As noted
above, the Examiner declined to adopt this proposed rejection, finding that
the claims are entitled to benefit of May 10, 1993, Japanese priority date.

E. The Subject Matter Described in the ’021, ’585, ’508, and ’520 Patents
The claims at issue in this appeal and the related ’9133 and ’9134
Appeal are directed to common subject matter described in the ’021, ’585,
’508, and ’520 patents, which are related to each other as divisionals in the
above-identified chain of U.S. patents.
The claimed invention relates to “an interactive communication
system for transmitting video game and karaoke software from a host facility
to communication terminal devices.” ’021 patent 1:21–23.
The principal issue in this appeal is whether Patent Owner is correct to
argue that the claim phrase “transmitting the program, the data, or the
combination of the program and data” (claims 1, 5, and 8) must be given a
conjunctive interpretation, i.e., as requiring an ability to separately transmit
each of a program, data, and a combination of a program and data.22 PO

21 Tsumura, U.S. Patent 5,547,202, issued on August 20, 1996. Request
Ex. M.
22 All quotations herein of claim language are based on the Claims
Appendix, PO Appeal Br. 26–28.
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Appeal Br. 10–12. The Examiner instead agrees with Requesters that the
claim language properly may be given a disjunctive interpretation, i.e., as
requiring an ability to transmit at least one of a program, data, and a
combination of a program and data. May 2013 RAN 25; Req. Resp’t Br. 4.
As explained in greater detail below, Patent Owner more particularly
appears to be of the view that the claim language requires an ability to
selectively transmit any of (i) an executing program that is unaccompanied
by any data, (ii) data that is unaccompanied by any executing program, or
(iii) a combination of an executing program and data. We do not agree with
this interpretation.
The ’021 patent does not define either of the terms “program” and
“data,” which are used in the ‘’021 patent in the various ways discussed
below. We begin our discussion with Figures 1, 2, and 6, which appear in
all seven of the patents in the U.S. patent chain.23 For the following reasons,
we agree with the Examiner that the term “game data’ as used in Figures 2
and 6 refers to the combination of a game executing program and data for
use by the game executing program.
Figure 1 is reproduced below.

23 The ’021, ’585, ’508, and ’520 patents include Figures 1–14, of which
only Figures 1–11 appear in the third-filed ’995 patent and second-filed
patent 5,735,744. Only Figures 1–7 appear in the first-filed ’103 patent.
Figures 2 and 6 in the ’021, ’585, ’508, and ’520 patents show fee-charging
features that do not appear these figures in the earlier patents.
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Figure 1 is a block diagram of a communication terminal device according to
the invention. ’021 patent 3:46–47. A personal communicator 1 includes,
inter alia, a memory 8 and a terminal modem 3 that is connected to
transmission paths 200. Id. at 4:61–63; 5:1–4.
Figure 2 is reproduced below.
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Figure 2 is a block diagram of a communication system that includes the
personal communicator 1 shown in Figure 1. Id. at 4:39–42. A host
facility 100 has “a game data base 101, karaoke data base 103 and other data
base 105” and also has a “game data transmitter 111, karaoke data
transmitter 113 and other data transmitter 116” for retrieving data from the
corresponding data base and transmit them (to personal communicator 1).
Id. at 4:44–47.
Figure 6, which is reproduced below, describes the operation of the
host facility and personal communicator depicted in Figures 1 and 2.
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Specifically, figure 6 is “a flowchart of the process to be effected when
playing a game is requested at the communication terminal device.” Id. at
3:57–59. At step S1100, “game request data” (i.e., data representing a
request to play a game) are generated and include the identification number
of the calling personal communicator 1 and the desired game number. Id. at
6:20–23. At step S1110, the generated game request data are sent to host
facility 100. Id. at 6:23–24. Subsequently, “game data” corresponding to
the request are retrieved from the game data base 101 and sent to the
corresponding personal communicator. Id. at 6:25–31.
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The Examiner, referring to the third-filed, ’995 patent in the patent
chain, finds that the term “game data” as used in Figures 2 and 6 refers to a
game executing program and data for use by the game executing program:
[T]he 5,775,995 patent . . . uses the phrase “game data” to refer
to both the game program and the data on which the program
operates (column 5, lines 49-60; also column 6, lines 1-56; a
game program must include data from some source in order to
function, the disclosure of a game is disclosure of the game and
the data operated on by that game; memory 8 is storing both the
game and the game data).
May 2013 RAN 15. Patent Owner does not challenge this finding by the
Examiner, which we find to be a reasonable one.
For reasons like those given above, we further find that the term
“karaoke data” as used in Figure 2 includes a karaoke execution program
and data for use by the karaoke executing program. Patent Owner does not
contend otherwise.
In contrast to the above-discussed terms “game data” and “karaoke
data,” the following passage, which appears in all of the patents in the U.S.
patent chain, uses the term “advanced map data” to refer to data that are
transmitted without being accompanied by an executing program:
Map data of a role-playing game may be divided
according to the progress degree of the story and the divided
map data be sold separately. When the game progresses and the
player wishes to play on a more advanced map data, the player
purchases and downloads the advanced map data. In this case,
arrangement is provided such that the player cannot purchase
the advanced map data until the “capacity” or the progress
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degree of the characters in the game reaches a predetermined
degree or level.
’021 patent 8:34–42. Although the above-quoted passage does not include
the term “program,” Patent Owner reads the claim term “program” on the
originally purchased game and reads the claim term “data” on the “more
advanced map data”/“advanced map data”: “[T]he '021 Patent states that
when the game (e.g., program) progresses and the player wishes to play on a
more advanced map data (e.g., data), the player can purchase and download
the advanced map data (e.g., data).” PO Appeal Br. 11. To the extent Patent
Owner is suggesting that the originally purchased game consists of a game
executing program that is unaccompanied by any data, we are not persuaded.
As correctly pointed out by Requesters, “[i]n this example, the originally
purchased game must include some map data such that the player can
progress to a predetermined level to purchase ‘advanced’ map data.” Req.
Resp’t Br. 11.
Apart from being recited in the claims, the only mention in the ’021
patent of transmitting a “combination” of a program and data is in the
Abstract and in the first paragraph (reproduced below) of the “Detailed
Description of the Preferred Embodiment,” which describes (i) transmitting
a “combination” of a “program” and “data” and (ii) gives as examples
“transmitting a karaoke executing program and the data indicative of
karaoke music to be played, or a set of a word processing program and the
data indicative of document examples”:
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In the embodiment of the invention, data, a program, or
a combination of the two is transmitted from a host facility to a
communicator as a communication terminal device. The data
can be game data for playing games, karaoke data for playing
karaoke music, image data for displaying static images like still
pictures or dynamic images like movies, audio data for
reproducing sound or playing music, character data for
composing documents, and the like. The program includes a
large-scale program, such as a program for word processing, a
program for computing with a spread sheet, or a program for
communication, and a plug-in-program to be incorporated in a
main program. Transmitting a combination of the program and
data means, for instance, transmitting a karaoke executing
program and the data indicative of karaoke music to be played,
or a set of a word processing program and the data indicative
of document examples.
’021 patent 4:16–31 (emphasis added) (hereinafter “Detailed Description
first paragraph”). This Detailed Description first paragraph initially
appeared in the fourth-filed, ’520 patent. The Abstract recites: “A
communication system is proposed for transmitting at least one of the data,
the program, and a combination of them from a host facility to a
communicator such as a communication terminal device.”

E. The Claims on Appeal
Claim 1, which is representative of the independent claims, reads as
follows:
1. (Original) A software distributing system for
transmitting at least one of the program, the data, and a
combination of the program and data stored in a database
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provided in a distribution center to a requested communication
terminal device via communication lines;
storing the transmitted program, the data, and the
combination of the program and data in a memory provided in
the communication terminal device; and
enabling execution of the program or data processing
according to the program, the data, and the combination of the
program and data in the memory,
said distribution center comprising:
a transmitter device for transmitting the program, the
data, or the combination of the program and data at the request
of said communication terminal device[] to said communication
terminal device; and
a charging device for charging a fee for at least one use
of the transmitted program, the data, or the combination of the
program and data in said communication terminal device.
Claims App., PO Appeal Br. 26.

II. CLAIM INTERPRETATION
A. Claim Interpretation Principles
The ’021, ’585, and ’508 patents expired on April 25, 2014, after all
briefs had been filed. The matter of how to interpret the claims of an expired
patent is not addressed by the Examiner, Patent Owner, or Requesters.
As noted by our reviewing court:
While claims are generally given their broadest possible scope
during prosecution, In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir.
2000), the Board’s review of the claims of an expired patent is
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similar to that of a district court’s review, Ex Parte Papst-
Motoren, 1 U.S.P.Q.2d 1655, 1655-56 (B.P.A.I. Dec. 23, 1986);
see also MPEP § 2258 I.G (directing Examiners to construe
claims pursuant to Phillips v. AWH Corp., 415 F.3d 1303 (Fed.
Cir. 2005) (en banc), during reexamination of an expired
patent).
In re Rambus, Inc., 694 F.3d 42, 46 (Fed. Cir. 2012).
In Papst-Motoren, the Board held that:
[I]n reexamination proceedings in which the PTO is considering
the patentability of claims of an expired patent which are not
subject to amendment, a policy of liberal claim construction
may properly and should be applied. Such a policy favors a
construction of a patent claim that will render it valid, i.e., a
narrow construction, over a broad construction that would
render it invalid.
1 USPQ2d at 1656 (citations omitted). As noted by the Board, giving the
claim language a liberal interpretation in light of the specification does not
permit reading “inferential limitations” into a claim. Id. at 1656–57.
An expanded panel of the Board has pointed out that the Papst-
Motoren language with regard to giving a claim of an expired patent a
construction “that will render it valid” can be misleading. Ex parte Katz,
2010 WL 1259722 (BPAI 2010). As noted in Katz, our reviewing court has
limited the maxim that claims are construed, if possible, to sustain their
validity “to cases in which the court concludes, after applying all the
available tools of claim construction, that the claim is still ambiguous.” Id.
at *7 (quoting Phillips, 415 F.3d at 1327) (internal quotations and citation
omitted).
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“[T]he ordinary and customary meaning of a claim term is the
meaning that the term would have to a person of ordinary skill in the art in
question at the time of the invention, i.e., as of the effective filing date of the
patent application.” Phillips, 415 F.3d at 1313.
As further explained by our reviewing court:
“Apart from the claim language itself, the specification is the
single best guide to the meaning of a claim term.” AIA Eng’g
Ltd. v. Magotteaux Int’l S/A, 657 F.3d 1264, 1272 (Fed. Cir.
2011) (internal quotations and citation omitted). And while the
prosecution history often lacks the clarity of the specification, it
is another established source of intrinsic evidence. Id. After
considering these three sources of intrinsic evidence, a court
may also seek guidance from extrinsic evidence. Phillips,
415 F.3d at 1317-18. However, extrinsic evidence may be less
reliable than the intrinsic evidence.
Vederi, LLC v. Google, Inc., 744 F.3d 1376, 1382 (Fed. Cir. 2014).
“[T]he context in which a term is used in the asserted claim can be
highly instructive.” Phillips, 415 F.3d at 1314. “A claim construction that
gives meaning to all the terms of the claim is preferred over one that does
not do so.” Vederi, 744 F.3d at 1383 (citing Merck & Co., Inc. v. Teva
Pharm. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir. 2005)).
It is improper to read limitations from examples in the specification
into the claims. See Cadence Pharmaceuticals Inc. v. Exela PharmSci Inc.,
780 F.3d 1364, 1369 (Fed. Cir. 2015) (“[E]ven if all of the embodiments
discussed in the patent included a specific limitation, it would not be proper
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to import from the patent’s written description limitations that are not found
in the claims themselves.”) (internal quotations and citation omitted).

B. The Claim Language Requires a Conjunctive Interpretation
Patent Owner argues that the claim phrase “transmitting the program,
the data, or the combination of the program and data” (claims 1, 5, and 8)
must be given a conjunctive interpretation and thus as requiring an ability to
transmit each of the three transmission types. Specifically, Patent Owner
argues: “[I]n order to meet the subject limitation of transmitting either the
program, the data, or the combination of program and data, the applied
reference must teach a system capable of transmitting separate ‘program’
and ‘data,’ and also a ‘combination of program and data.’” PO Appeal Br.
11. See also PO Reb. Br. 7 (“[I]f the meaning of Claim 1 is construed
consistent with the specification, the software distributing system of Claim 1
must be construed as being capable of handling any of the three alternate
types . . . .”).
The Examiner agrees with Requesters that the claim language requires
a disjunctive interpretation, i.e., as requiring an ability to transmit at least
one of the recited transmission types. See May 2013 RAN 25 (“Third Party
argues ‘the claim limitation should be read disjunctively’, referring to the ‘at
least one of the program, the data, and a combination of the program and
data’ limitation . . . . This argument is fully considered and is persuasive.”)
(bolding omitted).
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For the following reasons we agree with Patent Owner’s conjunctive
claim interpretation.
Patent Owner’s arguments for a conjunctive interpretation are based
on language appearing in the preambles and the bodies of claims 1, 5, and 8
and also on the above-quoted Detailed Description first paragraph. PO
Appeal Br. 10–13. We begin our analysis with the language that appears in
the bodies of the claims. The body of claim 1 reads as follows:
said distribution center comprising:
a transmitter device for transmitting the program, the
data, or the combination of the program and data at the request
of said communication terminal devices [sic, device] to said
communication terminal device; and
a charging device for charging a fee for at least one use
of the transmitted program, the data, or the combination of the
program and data in said communication terminal device.
(Emphasis added.) The bodies of claims 5 and 8 include similar recitations.
We agree with Patent Owner that giving the claim language a
conjunctive interpretation is the only way to accord weight to all three
recited transmission types. If the claim language were given a disjunctive
interpretation, the transmission of a combination of a program and data
would satisfy each of the first and second transmission types (i.e., “program”
and “data”) and would make it unnecessary ever to determine whether the
transmission satisfies the third type (i.e., “the combination of the program
and data”). Therefore, we agree with Patent Owner that a disjunctive
interpretation would render some of the claim language superfluous. See PO
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Appeal Br. 12 (“The Patent Office's adoption of TPR's argument that the
claim limitation should be read disjunctively . . . would render the claim
language superfluous.”). Thus, we agree with Patent Owner that the
language in question in the bodies of independent claims 1, 5, and 8 should
be given a conjunctive interpretation.
Because the language recited in the bodies of the claims requires a
conjunctive interpretation, it is not necessary to address Patent Owner’s
additional reliance on the phrase “transmitting at least one of the program,
the data, and a combination of the program and data” in the preambles of
claims 1, 5, and 8 and on the Detailed Description first paragraph as support
for a conjunctive interpretation.24
In addition to their position that the claim language allows a
disjunctive interpretation, the Examiner and Requesters contend that the
references satisfy a conjunctive interpretation. See May 2013 RAN 22
(“[B]oth the Patent Office and the Third Party Requester have also shown
the cited prior art discloses all three elements.”).

24 “In general, a preamble is construed as a limitation if it recites essential
structure or steps, or if it is ‘necessary to give life, meaning, and vitality’ to
the claim.” Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d
801, 808 (Fed. Cir. 2002) (quoting Pitney Bowes, Inc. v. Hewlett-Packard
Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999)). Neither Requesters nor the
Examiner contends that the “transmitting” paragraph in the preambles is
entitled to no weight.
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C. What is Required by the Claim Language When Given a Conjunctive
Interpretation?
Patent Owner does not contend that a conjunctive claim interpretation
requires an ability to transmit the same program and data both separately and
in combination. Nor does Patent Owner contend that the ’021 patent
describes transmitting the same program and data both separately and in
combination. As noted above, Patent Owner reads the claimed separate
transmission of a “program” and “data” respectively on the role-playing
game and advanced map data described in the ’021 patent at column 8,
lines 34–38. PO Appeal Br. 11. Patent Owner reads the claimed
“combination of the program and data” on the last sentence of the Detailed
Description first paragraph, which states that “[t]ransmitting a combination
of the program and data means, for instance, transmitting a karaoke
executing program and the data indicative of karaoke music to be played,
or a set of a word processing program and the data indicative of document
examples.” PO Appeal Br. 12 (quoting ’021 patent 4:27–31).
Nor does Patent Owner, when explaining why the claims are entitled
to benefit of the April 25, 1994, filing date of the ’103 patent (which does
not include the Detailed Description first paragraph), contend that the ’103
patent describes an ability to transmit the same program and data both
separately and in combination. Instead, Patent Owner reads the separately
transmitted “program” and “data” on a “video game” and the “advanced map
data,” respectively, and reads the transmitted “combination of the program
and data” transmission of a “karaoke game with song data” (recited at ’103
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patent 9:4–5). PO Resp’t Br. 7–8. (The merits of this position of Patent
Owner are addressed infra in the discussion of the benefit issue.)
As will appear from the discussion of the entered and proposed
rejections, neither Requesters nor the Examiner treats a conjunctive claim
interpretation as requiring an ability to transmit the same program and data
both separately and in combination.
We further conclude that the claims do not require that the transmitted
“data” (whether transmitted separately or in combination with a “program”)
be intended for use by the transmitted “program.” Although such a
relationship is present in the above-discussed role-playing game/advanced
map data example (’021 patent 8:34–38) and also in the examples of “a
karaoke executing program and the data indicative of karaoke music to be
played, or a set of a word processing program and the data indicative of
document examples” (id. at 4:27–31), it is improper to read limitations from
specification examples into the claims. Cadence, 780 F.3d. at 1369.
We next address Patent Owner’s apparent position that the claims
require an ability to transmit any one of (1) a program unaccompanied by
any data, (2) data unaccompanied by any executing program, and (3) a
combination of an executing program and data. Patent Owner’s Table 1 is
reproduced below:
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PO Appeal Br. 14. This table lists six references in the column labeled
“Program Only” and no reference in any of the other columns (labeled “Data
only,” “Program & Data Only,” “Combination only,” and “Program, Data &
Combination”). Patent Owner argues that “none of the cited art clearly
teaches transmitting anything except ‘program only’” (id. at 14) and “none
of the prior art discloses or suggests a system that transmits ‘data’ only and
charges a fee on the data only.” Id. at 15.
To the extent Patent Owner is basing this “Data only” interpretation
on the “advanced map data” example in the ’021 patent, which are
transmitted without being accompanied by an executing program, it is
improper to read limitations from specification examples into the claims.
Cadence, 780 F.3d. at 1369. The claim language does not preclude the
separately transmitted “program” from being accompanied by some data or
preclude the separately transmitted “data” from being accompanied by a
program. At most, the claim language precludes the separately transmitted
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“program” from being accompanied by the particular data that correspond to
the recited “data” and precludes the separately transmitted “data” from being
accompanied by the particular program that corresponds to the recited
“program.” It is for this reason that we agree with Patent Owner’s position
(PO Appeal Br. 11) that the claimed “program” reads on the originally
purchased role-playing game in the role-playing game/advanced map data
example (’021 patent 8:34–38). As explained above, the originally
purchased role-playing game necessarily includes some initial map data.
Requesters contend that some of the references describe transmitting a
combination of a program and data because they describe transmitting video
game software, which necessarily includes a game executing program and
data for use thereby. More particularly, and presumably relying on the ’021
patent’s role-playing game/advanced map data example, Requesters, argue:
“Consistent with the ‘021 Patent specification, transmission of ‘game
software’ includes transmission of both a game ‘executing program’ and
‘game data.’” Req. Resp’t Br. 11. Patent Owner does not deny that a
transmitted video game includes a game executing program and data for use
thereby.
Requesters further argue: “The transmission of video games requires
both program and data, and thus, the prior art discloses all three elements.”
Id. at 10 (heading b, bolding omitted). We agree with Patent Owner that “a
prior art reference teaching the transmission of video games does not teach
or suggest a system capable of transmitting all three distinct transmission
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types.” PO Reb. Br. 10. Transmission of a video game does not satisfy the
claimed requirement for an ability to separately transmit a program and data.
We next address Requesters’ argument that the “charging device”
paragraph in the bodies of claims 1 and 8 must be given a disjunctive
interpretation:
[I]ndependent claims 1 and 8 of the ‘021 patent require only:
“charging a fee for at least one use of the transmitted program,
the data, or the combination of program and data” (claim 1);
and “charging a fee for at least one transmitted program, data,
or combination of the program and data” (claim 8). As the
claims of the ‘021 Patent make clear, the charging device need
not charge for all transmitted elements, just “at least one.”
Req. Resp’t Br. 10. We agree with Patent Owner that the above-quoted
claim language must be given a conjunctive interpretation and thus requires
an ability to charge a usage fee for at least one use of each of the three
transmission types. See PO Appeal Br. 15 (“[N]one of the prior art discloses
or suggests a system capable of transmitting a program, data, and a
combination, and charges a fee on the program, data, or the combination that
was transmitted.”).

III. THE EXAMINER’S ANTICIPATION REJECTIONS
Patent Owner’s arguments against the anticipation rejections are
specifically directed to the independent claims (viz., claims 1, 5, and 8).
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“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).

A. Anticipation by Matsuda (claims 1 and 4–11) (Ground AS)
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’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 communication 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, the information is transmitted
from information center 1 to a terminal block 2 in response to a request by
the 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 [a] communication line for use
at the terminal block. Pg. 5, first full paragraph.
PO Appeal Br. 17. Thus, the transmission occurs “at the request of said
communication terminal device[]” (claim 1).
Requesters read the claimed three transmission types on Matsuda as
follows: “Matsuda teaches a software distributing system for transmitting
programs (e.g., educational software), data (e.g., audio or video
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information), and a combination of program and data (e.g., game software).”
Req. Aug. 2012 Comments 10.
Patent Owner’s argument against the rejection is specifically directed
to the claimed separate transmission of “data”:
Through-out the specification, Matsuda is consistent in stating
that it is an information rental system that allows “software
products” to be rented so that users do not need to go all the
way to a rental store. However, nothing in Matsuda teaches or
suggests downloading and charging a fee for “data,” such as the
map data supported in the '021 specification. Therefore,
Matsuda only teaches a rental system for programs and TPR’s
[Third Party Requesters’] argument fails to show how Matsuda
discloses all three distinct transmission types.
PO Appeal Br. 17–18 (emphasis added). This argument is unpersuasive
because Patent Owner has not demonstrated that the claim term “data” does
not read on the audio or video software, which presumably will include
audio data or video data. Assuming for the sake of argument that the audio
and video data are accompanied by an executing program, the claim
language, as noted above, does not preclude the separately transmitted
“data” from including or being accompanied by an executing program.
We sustain the rejection of claims 1 and 4–11 for anticipation by
Matsuda.

B. Anticipation by Rhoades (claims 1–4 and 8–10) (Ground AN)
The invention described in Rhoades “provide[s] a vehicle whereby a
plurality of information service software programs are made available
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substantially upon demand and upon request to individual subscribers on a
‘pay-per-use’ basis with a minimum of subscriber overhead.” Rhoades
2:32–36 (emphasis added).
Rhoades’s Figure 1 is reproduced below.

Figure 1 is a system-level block diagram depicting a digital interactive
communication system in conjunction with a home computing assembly in
accordance with Rhoades’s invention. Id. at 3:52–55.
The home subscriber utilizes the home computing
element 10 to call the remote information services storage
center 60 through the telephone line 74. Once a telephone link
is established, the subscriber selects any one of a plurality of
information services, including for example mall shopping
services, personal dating services, . . . grocery shopping service,
catalog sales, travel agency services, floral services, classified
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advertising, contests, and pre-stored video games, or other
software programs which have been previously offered to the
subscriber in a menu format.
Id. at 4:44–55 (emphasis added).
Furthermore, “[a]ll billing for use of the subscribed information
services is performed automatically by the computer facilities of the remote
information storage center 60 and the billing information is transmitted over
the telephone lines 74 to the main office or headquarters 90 (see FIG. 1).”
Id. at 5:28–33. We understand this statement to mean that the user is billed
for each requested type of information service, including the floral and
advertising services and video games. Therefore, we agree with Requesters
that “[t]he system charges for each use of the downloaded software program,
regardless of which program is downloaded. [Rhoades] 3:34-38, 5:28-33.”
Req. Resp’t Br. 12.
Requesters read the claimed three transmission types on Rhoades as
follows: “Rhoades discloses an interactive communication system that can
transmit programs (e.g., software programs), data (e.g., classified advertising
data), and a combination of program and data (e.g., pre-stored video
games).” Req. Aug. 2012 Comments 10.
Patent Owner argues:
The interactive browsing taught in Rhoades '107 is quite
different than the '021 claims. For example, Claim 1 recites
charging a fee for at least one use of the “data.” Claim 5 recites
charging a fee for a specified time for use of the “data.” Claim
8 recites charging a fee for the “data.” Therefore, even if
Rhoades '107 discloses “data,” which Patent Owner contends is
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not shown, Rhoades '107 clearly fails to teach or suggest
charging a fee associated with the data as recited in the claims.
PO Appeal Br. 15–16.
This argument is unpersuasive because Patent Owner has not
demonstrated that the claim term “data” does not read on the data (e.g.,
image data) received as part of the floral service, classified advertising
service, or video games. Payment for the service is also payment for the
data provided by the service.
We sustain the rejection of claims 1–4 and 8–10 for anticipation by
Rhoades.

C. Anticipation by Griswold (Claims 1–11) (Ground AO)
Griswold’s invention “generally relates to systems for managing
licenses of products such as computer software, video games, CD-ROM
information, movies and other video products, music and other audio
products, multimedia products, and other systems for up-to-date recording of
actual usage of such a licensed product to enable efficient billing therefor.”
Griswold 1:16–22.
Griswold’s Figure 1 is reproduced below.
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Figure 1 is a general block diagram of the preferred exemplary embodiment
of Griswold’s invention. Id. at 4:53–54.
As shown in Figure 1, a licensed product 1, which includes an
executable portion 1A and a data portion 1B, is located at a licensee’s site.
Id. at 5:19–20. License datagrams 3, which are messages that describe
information related to the use of licensed product 1, are sent over a
communications network between the licensee and licensor. Id. at 5:44–47.
Griswold explains that licensed product 1 can be delivered to the
licensee site over communication lines or by broadcasting:
Also, the presently described embodiment includes a
product 1 which is at the licensee’s site. This implies that
product 1 is on some physical media such as diskette, tape, or
CD. However, product 1 can be electronically delivered over
communications lines to the licensee and therefore might exist
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in the memory of the licensee’s machine, rather than any
physical media. In the case of a product such as music, radio
programs and the like, product 1 may even be broadcast to the
licensee’s site for playback; thus, the product 1 would not even
be “resident” in the licensee’s machine.
Id. at 11:44–54.
The Request reads the transmitted “program,” “data,” and
combination of program and data on an electronically delivered product 1:
“Griswold discloses that programs and/or data “can be electronically
delivered over communications lines to the licensee and therefore might
exist in the memory of the licensee's machine, rather than any physical
media.” Request 31 (quoting Griswold 11:46-50).
Patent Owner argues that anticipation is lacking because Griswold
does not describe electronic delivery of product 1 from the licensor to the
licensee in response to a request:
Griswold . . . states that the product could be electronically
delivered over communication lines to the licensee and
therefore exist in the memory of the licensee's machine, rather
than any physical media. Interestingly, however, Griswold is
silent about the system or manner in which the product would
be electronically delivered. It appears that how the products
become available at the licensee's machine is not important.
Therefore, Griswold can not possibly be a prior art reference in
regards to transmitting at least one of the program, the data, and
combination of the program and data stored in a database
provided in a distribution center to a requested communication
terminal device. . . .
. . . The TPR appears to argue that the product (which
could be computer software, CD-ROM information, etc[.]) is
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transmitted from the licensor's site to the remote licensee's site.
However, upon closer review of Griswold, one will notice that
Griswold discloses transmitting request and reply datagrams
between the licensee's site and the licensor's site and not the
product itself. See, e.g., Griswold, Fig. 1, Col. 5, lines 19-60.
PO Appeal Br. 20 (emphasis altered). We agree with Patent Owner that
Griswold does not describe transmitting a product 1 from the licensor’s site
to the licensee’s site in response to a request by the latter. This argument is
not addressed by Requesters.
We do not sustain the rejection of any of claims 1–11 for anticipation
by Griswold.

D. Anticipation by Hornbuckle (Claims 1–11) (Ground AP)
Hornbuckle’s invention relates to remotely controlling and monitoring
the use of computer software. Hornbuckle 1:15–16.
Hornbuckle’s Figure 1 is reproduced below.

Figure 1 is an illustration of a data communication system in which a remote
control module of Hornbuckle’s invention is employed. Id. at 4:60–62. As
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shown in this figure, software rental system 10 generally comprises a host
computer 12, a target computer 14, a remote control module (RCM) 16
associated with host computer 12, and an RCM 18 associated with target
computer 14. Id. at 5:9–13. Communication between host computer 12 and
target computer 14 and their respective RCMs 16 and 18 is accomplished via
a standard serial RS232 communications link. Id. at 5:13–16.
The following passage describes “programs or data” that are
downloadable from host computer 12 to target computer 14 and also
describes “usage and other accounting data”:
By means of the present invention, an authorized user at
the target computer is able to “download” programs or data,
via a telephone line and a programmable remote control module
(RCM) connected at each end thereof from a central or host
computer. Usage and other accounting data are monitored by
the RCM and stored in memory resident therein. At
predetermined times, the central or host computer accesses the
RCM for the purpose of “uploading” the usage and other
accounting data to the central or host computer.
The RCM of the present invention also includes:
(1) programmable modules for preventing unauthorized use,
copying, vandalism and modification of downloadable data and
programs during or after transmission to the target computer
. . . .
Id. at 3:23–37 (emphasis added). Hornbuckle further explains that “[i]n at
least some instances, the rental software provided by the host computer 12
may have a very large amount of code and many data files.” Id. at 11:55–57.
Requesters read the claimed three transmission types on Hornbuckle
as follows: “Hornbuckle describes a software rental system for transmitting
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programs (e.g., engineering or scientific software and tax programs), data
(e.g., advertising and promotional material), and a combination of program
and data (e.g., video game) from a host computer to a target computer.”
Req. Aug. 2012 Comments 11. See also Req. Resp’t Br. 9 (“Hornbuckle
teaches a rental system where ‘unauthorized use, copying, vandalism and
modification of downloadable data and programs’ is prevented.”)
(quoting Hornbuckle 3:32–36).
Patent Owner argues:
[T]he “data” taught in Hornbuckle is “usage data” or “menu
data” and this “usage data” or “menu data” would not be
charged a fee for at least one use of the “data” as recited in
Claim 1, or charged a fee for specified time for use of the
“data” as recited in Claim 5, or charged a fee for the “data” as
recited in Claim 8. Hornbuckle expressly states that “the
present invention relates to remotely controlling and monitoring
the use of computer software.” In addition, Patent Owner's
argument that the data disclosed in Hornbuckle is “usage” or
“menu” data is supported in several paragraphs (Col. 3, lines
23-31; Col. 3, lines 56-60; Col. 4, lines 15-21).
PO Appeal Br. 16.
We are not persuaded by Patent Owner’s argument. The term “data”
in Hornbuckle’s phrase “downloadable data and programs” (at 3:32–36)
clearly refers to downloadable data for which the user is charged rather than
to “usage data” or “menu data,” for which the user is not charged.
We sustain the rejection of claims 1–11 for anticipation by
Hornbuckle.

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E. Anticipation by Shear (Claims 1–11) (Ground AQ)
Shear’s invention “relates to techniques for preventing unauthorized
use of an electronic digital information database and for measuring the
utilization of the database by authorized users.” Shear 1:21–25. Shear’s
invention “solves the fundamental CD and Optical publishing problem of
how to provide end-users with disk libraries containing many different
publications from different venders.” Id. at 7:4–7.
Patent Owner argues that Shear fails to describe the three transmission
types: “At best, Shear discloses transmitting database information that is
accessed. Although Shear may do a good job of disclosing the remote
access of database information, Shear does not teach or suggest transmitting
at least one of a program, data, or a combination of program or data.” PO
Appeal Br. 22. We are persuaded by Patent Owner’s argument, which is not
addressed by Requesters, who instead state only: “With respect to Shear,
[Patent Owner] admits that Shear discloses transmitting database
information (e.g., data) that is accessed, but argues that Shear does not
disclose all three types. The Ground AQ rejection of all claims should be
confirmed.” Req. Resp’t Br. 7 (citation omitted).
We do not sustain the rejection of any of claims 1–11 for anticipation
by Shear.

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F. Anticipation by Thacher (Claims 1–11) (Ground AR)
Thacher’s invention “relates to games of skill, and in particular to a
system in which players of individual electronic games such as video games
or the like can play a tournament.” Thacher 1:8–11.
Thacher’s Figure 1 is reproduced below.

Figure 1 is a block diagram of a basic tournament system according to
Thacher’s invention. Id. at 5:43–44.
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Central computer 6 is connected to local video games (i.e., video
game machines25) 1 by interfaces 3 and to remote video games by a CATV
cable 10, modems 9, and interfaces 3. Id. at 5:52–6:6. Each interface 3 is
connected to a respective card reader, such as a credit card reader. Id. at
5:58–60. If a player has credit, the video game machine is turned on,
enabling the player to play. Id. at 2:58–59.
Requesters read the claimed transmission of “data” on Thacher as
follows:
Thacher discloses transmitting many types of data [that] may
be downloaded from a central computer by the remote computer
terminal, including announcement messages (7:62-65), a
program for a different kind or difficulty of game (13:38-57;
16:52-60; 18:20-28), memory address location for scores and
other data relating to the kind of game (13:60-14:6), a specific
display (16:6-28), or even in-game advertising (17:59-65).
Req. Aug. 2012 Comments 12 (emphasis added).
Patent Owner argues that Thacher does not describe charging a fee for
transmission of the above-identified data, as is required when the “charging”
claim language is properly given a conjunctive interpretation:
TPR attempts to argue that Thacher's disclosure of various
types of data (i.e., announcement messages, in-game
advertising) teaches the data as recited in the '021 claims.
There is no teaching or suggestion in Thacher that a charging
device charges a fee for at least one use of the data (Claim 1), or
charges a fee for a specified time for use of the data (Claim 5),
or charges a fee for the data (Claim 8). . . .

25 Thacher 2:54.
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Therefore, at best, Thacher only teaches one distinct
type, namely programs.
PO Appeal Br. 17.
Requesters respond by arguing, incorrectly, that the “charging” claim
language must be given a disjunctive interpretation and thus does not require
charging for transmitted “data”:
Contrary to Appellant’s arguments, the claims do not require
charging for all transmitted programs, data, and combination.
Instead, as discussed above, the claims require only: “charging
a fee for at least one use of the transmitted program, the data, or
the combination of program and data” (claim 1); “charging a
fee for a specified time for use of at least one program, data, or
combination of program and data” (claim 5); and “charging a
fee for at least one transmitted program, data, or combination of
the program and data” (claim 8). Appellant does not dispute
that Thacher teaches charging for transmitted programs.
Appellant does not dispute that Thacher teaches transmission of
the combination. Thacher teaches distribution of games and
therefore teaches transmission of the combination. The
rejection of all claims under Ground AR should be maintained.
Req. Resp’t Br. 11 (citations omitted).
For the reasons given supra, we agree with Patent Owner that the
claim language requires an ability to charge a usage fee for each of the three
transmission types.
We do not sustain the rejection of any of claims 1–11 for anticipation
by Thacher.

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G. Anticipation by Oseki (Claims 1 and 4–11) (Ground AT)
Oseki’s invention is a software rental system. Oseki 3. Oseki’s
Figure 1 is reproduced below.

Figure 1 is a structural drawing of the software lending system in an
embodiment of Oseki’s invention. Id. at 4.
The software provider side comprises, inter alia, “a memory means 1
on which various application software (hereinafter, AP) is stored” and a
means 5 that transmits the read AP file to the user via a line 6. Id.
Patent Owner contends that “Oseki only discloses one distinct type,
namely programs” (PO Appeal Br. 18) and thus fails to show all three of the
claimed transmission types. Id.
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Neither Requesters nor the Examiner contends that Oseki describes all
three transmission types. The sole mention of Oseki in Requesters’
Respondent Brief is in the following passage: “Appellant admits that each of
Rhoades '107, Hornbuckle, Thacher, Matsuda, Oseki, and Kato teaches
transmission of at least a ‘program.’ Appeal Br. at 14. As such, the rejection
of all claims under Grounds AN, AP, AR, AS, AT, and AU should be
maintained.” Req. Resp’t Br. 6. This argument is unpersuasive because it
fails to address the claim language when given its proper conjunctive
interpretation.
We do not sustain the rejection of claims 1 and 4 –11 for anticipation
by Oseki.

H. Anticipation by Kato (Claims 1 and 4–11) (Ground AU)
Kato’s invention is “an online software automatic vending machine
for supplying online various kinds of software.” Kato 4.
The software “rang[es] over various fields, from so-called business
software including word processors, spreadsheets, and databases to
computer graphics, music, games, and so on.” Id. at 5.
Requesters read the claimed three transmission type on Kato as
follows: “Kato discloses a system that can transmit programs (e.g.,
application programs such as word processors), data (e.g., music or
computer graphics), and a combination of program and data (e.g., games).”
Req. Aug. 2012 Comments 11.
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Patent Owner argues that “Kato is only concerned with and therefore
only discloses one distinct type, namely software programs” and that “TPR's
argument fails to show how Kato discloses all three distinct transmission
types.” PO Appeal Br. 19. This argument is unpersuasive because Patent
Owner has not demonstrated that the claimed “data” does not read on music
or computer graphics or that the claimed “combination” of a program and
data does not read on a game.
We sustain the rejection of claims 1 and 4–11 for anticipation by
Kato.

I. Anticipation by Wiedemer (Claims 1–3, 5, 6, 8, 9, and 11) (Ground AV)
Wiedemer’s invention relates to “systems for pay broadcast of
videotext and videogames and to a method for providing secure distribution
of videotext and videogame material to users on a pay per view basis.”
Wiedemer 1:12–15. Television, videotext, and videogame programming are
broadcast in scrambled form with a broadcast signal that is imbedded in the
program broadcast. Id., Abstract. The receiving station can generate signals
to descramble the input program content. Id.
Wiedemer’s Figure 1 is reproduced below.
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Figure 1 is a schematic block diagram of a videotext and videogame pay per
use system constructed in accordance with Wiedemer’s invention. Id.
at 2:31–33.
A decoder 10 at a user’s location receives a “scrambled broadcast
signal” received from, for example, a broadcast station 12 that “broadcast[s]
either over the air or over cable.” Id. at 2:44–46. The decoder unscrambles
the scrambled broadcast signal (assuming that the system user has been
properly authorized to gain access to the broadcast signal) and produces an
unscrambled program signal that is suitable, for example, for viewing on a
conventional television set 16. Id. at 2:49–54.
Wiedemer’s system can be used to distribute videogame materials. Id.
at 12:3–5. Microprocessor 22 in decoder 10 also is connected by a flexible
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cable 36 to a remote memory unit 38 housed in a cartridge 40. Id. at 3:47–
49. Cartridge 40 is shaped and sized to conform to the shape and size of
game cartridges designed for a home computer 42 intended for videogame
use. Id. at 3:51–55. When Wiedemer’s system is being used for this
purpose, microprocessor 22 provides an output stream of digital characters
decoded from the input stream received from the broadcast signal and loads
those characters directly to the memory unit 38. Id. at 12:11–14. Therefore,
Requesters are correct to describe Wiedemer as “disclos[ing] transmitting
videotext and videogames from a distribution center over a cable line to a
home receiver, which decodes the signal and routes game information to a
removable memory unit attached to a game console.” Req. Aug. 2012
Comments 12.
Patent Owner argues that Wiedemer does not describe “transmitting”
information from broadcast station 12 to decoder 10 in response to a request
from the decoder, as required by the claims:
Wiedemer does not teach or suggest “a transmitter device for
transmitting the program, the data, or the combination of the
program and data at the request of said communication terminal
devices to said communication terminal device,” but rather
teaches a broadcast system in which programming is embedded
into a broadcast signal. Therefore, Wiedemer does not disclose
any of the transmitted types.
PO Appeal Br. 19.
In response, Requesters argue that “[b]ecause the user can select a
program content level and descramble and store only the programs of that
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level, Wiedemer describes transmitting at the request of the communication
terminal.” Req. Resp’t Br. 13. We do not agree that descrambling and
storing a portion of the scrambled signal that the decoder receives from
broadcast station 12 fairly can be described as “transmitting” information to
the decoder at the request of the decoder, as is necessary to satisfy the claim
language.
Therefore, we do not sustain the rejection of any of claims 1–3, 5, 6,
8, 9, and 11 for anticipation by Wiedemer.

IV. THE EXAMINER’S OBVIOUSNESS REJECTIONS
A. Wiedemer in View of Suzuki (Claims 4, 7, and 10) (Ground AW)
Suzuki is relied on (at Request page 169) for only the disabling
feature recited in dependent claims 4, 7, and 10, of which claim 4 reads as
follows:
4. (Original) A software distributing system as in
claim 1, further including a disabling device that disables said
transmitted program, data, or combination of program and data,
until said distribution center receives charge for use of said
program, data, or combination of program and data.
Because we have found that Wiedemer does not anticipate parent
claims 1, 5, and 8, we do not sustain the rejection of any of claims 4, 7,
and 10 for obviousness over Wiedemer in view of Suzuki.

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B. Matsuda in View of Tsumura (Claims 1–11) (Ground BB)
Patent Owner’s arguments against this ground of rejection are directed
to the independent claims. PO Appeal Br. 23-24.
Because we have sustained the rejection of claims 1 and 4–11 for
anticipation by Matsuda, we also sustain the rejection of claims 1–11 for
obviousness over Matsuda in view of Tsumura. See In re McDaniel,
293 F.3d 1379, 1385 (Fed. Cir. 2002) (“[A]nticipation is the epitome of
obviousness.”).

C. Hornbuckle in View of Tsumura (Claims 1–11) (Ground BE)
Because we have sustained the rejection of claims 1–11 for
anticipation by Hornbuckle, we also sustain the rejection of claims 1–11 for
obviousness over Hornbuckle in view of Tsumura.

D. Hornbuckle in View of Tashiro (Claims 1–5 and 8–11) (Ground AG)
Because we have sustained the rejection of claims 1–11 for
anticipation by Hornbuckle, also sustain the rejection of claims 1–5 and 8–
11 for obviousness over Hornbuckle in view of Tashiro.

E. Kato in View of Stokey (Claims 5–7) (Ground AH)
Because we have sustained the rejection of claims 1 and 4–11 for
anticipation by Kato, we also sustain the rejection of independent claim 5
and its dependent claims 6 and 7 for obviousness over Kato in view of
Stokey.
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Furthermore, the subject matter relied on in Stokey, namely,
“disclos[ing] varying the cost of computer software depending on the length
of time the software has been available in the market” (Req. Oct. 2010
Comments 41–42) is not relevant to original claims 5–7, which are the
claims before us. Instead, Stokey was relevant to claim 5 as previously
amended to recite setting the use fee in accordance with the “newness” of
the transmitted program, data, or combination of program and data. PO
Sept. 2010 Resp. 3.

F. Matsuda in View of Stokey (Claims 5–7) (Ground AI)
Inasmuch as we have sustained the rejection of claims 1 and 4–11 for
anticipation by Matsuda, we also sustain the rejection of claims 5–7 for
obviousness over Matsuda in view of Stokey. Also, as noted above, Stokey
is not relevant to the subject matter recited in original claims 5–7.

G. Kato in View of Dobrow (Claims 5–7) (Ground AJ)
Because we have sustained the rejection of claims 1 and 4–11 for
anticipation by Kato, we also sustain the rejection of claims 5–7 for
obviousness over Kato in view of Dobrow.
We note that Dobrow, like Stokey, was cited to address amended
claims 5-7, which recited setting the use fee in accordance with the
“newness” of the transmitted information. See Req. Oct. 2010 Comments 43
(“Dobrow discloses varying the cost of consumer entertainment products
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(e.g. movies) depending on the length of time the product has been available
in the market.”).

V. CONCLUSIONS REGARDING EXAMINER’S REJECTIONS
A. Sustained Rejections
We have sustained the Examiner’s following rejections:
1. Claims 1 and 4–11 for anticipation by Matsuda (Ground AS).
2. Claims 1–4 and 8–10 for anticipation by Rhoades (Ground AN).
3. Claims 1–11 for anticipation by Hornbuckle (Ground AP).
4. Claims 1 and 4–11 for anticipation by Kato (Ground AU).
5. Claims 1–11 for obviousness based on Matsuda in view of
Tsumura (Ground BB)
6. Claims 1–11 for obviousness based on Hornbuckle in view of
Tsumura (Ground BE).
7. Claims 1–5 and 8–11 for obviousness based on Hornbuckle in
view of Tashiro (Ground AG).
8. Claims 5–7 for obviousness based on Kato in view of Stokey
(Ground AH).
9. Claims 5–7 for obviousness based on Matsuda in view of Stokey
(Ground AI).
10. Claims 5–7 for obviousness based on Kato in view of Dobrow
(Ground AJ).

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B. Rejections Not Sustained
We have not sustained the Examiner’s following rejections:
1. Claims 1–11 for anticipation by Griswold (Ground AO).
2. Claims 1–11 for anticipation by Shear (Ground AQ).
3. Claims 1–11 for anticipation by Thacher (Ground AR).
4. Claims 1 and 4–11 for anticipation by Oseki (Ground AT).
5. Claims 1–3, 5, 6, 8, 9, and 11 for anticipation by Wiedemer
(Ground AV).
6. Claims 4, 7, and 10 for obviousness based on Wiedemer in view of
Suzuki (Ground AW).

VI. THE PROPOSED REJECTION THAT IS THE SUBJECT OF
REQUESTERS’ APPEAL
The sole proposed rejection argued in Requesters’ Appeal Brief is the
proposed rejection of claims 1, 5, 8, and 11 for anticipation by Roskowski
(Ground AX).
As noted above, the Examiner finds that the ’021 patent claims are
entitled to benefit of the May 10, 1993, date of Japanese patent document
5-108303 (Inter partes Order 5), thereby implicitly also finding that the
claims are entitled to the April 25, 1994, filing date of the ’103 patent, which
is the only patent in the U.S. patent chain that has a filing date that predates
Roskowski’s June 6, 1994, filing date.
Under 35 U.S.C. § 120, a claim in a U.S. application is entitled to the
benefit of the filing date of an earlier filed U.S. application if the subject
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matter of the claim is disclosed in the manner provided by 35 U.S.C. § 112,
first paragraph, in the earlier filed application. Tronzo v. Biomet, Inc.,
156 F.3d 1154, 1158 (Fed. Cir. 1998).
Requesters correctly note that “[n]owhere prior to the ‘520 Patent,
which was filed on July 2, 1998, is the phrase ‘combination of the program
and the data’ (or any derivatives) used.” Req. Aug. 2012 Comments 14.
Nevertheless, we agree with the Examiner that “[t]he addition of [the]
language ‘a combination of the program and data . . .’ during a prosecution
point does not preclude the subject matter from being disclosed previous to
that point.” May 2013 RAN 15.
Furthermore, we agree with the Examiner’s finding that the recited
“combination of the program and data” has written description support in the
claim term “game data” as used in the patents in the U.S. patent chain that
precede the fourth-filed ’520 patent and in the Japanese priority application:
For example, the 5,775,995 patent . . . uses the phrase “game
data” to refer to both the game program and the data on which
the program operates (column 5, lines 49-60; also column 6,
lines 1-56; a game program must include data from some source
in order to function, the disclosure of a game is disclosure of
the game and the data operated on by that game; memory 8 is
storing both the game and the game data). The “combination”
was disclosed prior to Third Party Requester’s example. The
original Japanese application has similar language (starting at
paragraph 0026).
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Id. The above-cited subject matter from column 5, lines 49–60 and
column 6, lines 1–56 of the ’995 patent appears in the ’103 patent at
column 5, line 30 to column 6, line 46.
Requesters do not challenge the Examiner’s above-quoted position
that the ’995 and ’103 patents describe transmitting a combination of a
program and data. Instead, Requesters argue that these patents do not
additionally describe the separate transmission of a program and data:
Prior to the addition of this disclosure [in the ’520 patent] there
is no support in the earlier parent patent specification for
transmitting a “combination of program and data” in addition to
separately transmitting a program and separately transmitting
data because, prior to this amendment, there was no distinction
made between “the program” and “the data.”
Req. Appeal Br. 9. As noted supra, Patent Owner reads the separately
transmitted “program” and “data” on a “video game” and the “advanced map
data,” respectively. PO Resp’t Br. 7-8.
Requesters have not demonstrated any error in this position of Patent
Owner, which we find to be persuasive. Therefore, we find that the claims
before us are entitled to the April 25, 1994, filing date of the ’103 patent,
with the result that Roskowski is not available as prior art against the claims.
Accordingly, we sustain the Examiner’s decision not to enter the
proposed rejection of claims 1, 5, 8, and 11 for anticipation by Roskowski.

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VII. DECISION
The Examiner’s decision that claims 1–11 are unpatentable over the
prior art is affirmed.
The Examiner’s decision not to reject any of claims 1, 5, 8, and 11 for
unpatentability over Roskowski is affirmed.
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:

COOLEY LLP
ATTN: PATENT GROUP
1299 PENNSYLVANIA AVENUE, NW
SUITE 700
WASHINGTON, DC 20004