95001460 (P.T.A.B. Nov. 20, 2013)

Ex Parte 7121982 et al

Patent Trial and Appeal BoardNov 20, 2013

95001460 (P.T.A.B. Nov. 20, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 95/001,460 10/01/2010 7121982 6496-00100 9962 35690 7590 11/20/2013 MEYERTONS, HOOD, KIVLIN, KOWERT & GOETZEL, P.C. P.O. BOX 398 AUSTIN, TX 78767-0398 EXAMINER DOERRLER, WILLIAM CHARLES ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 11/20/2013 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 THE PATENT TRIAL AND APPEAL BOARD ____________________ NINTENDO CO., LTD. Requester and Appellant v. IA LABS CA, LLC Patent Owner and Respondent ____________________ Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 Technology Center 3900 ____________________ Before DANIEL S. SONG, MICHAEL J. FITZPATRICK, and DAVID C. McKONE, Administrative Patent Judges. FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 2 STATEMENT OF THE CASE This proceeding arose from a request filed October 1, 2010, by Requester, Nintendo Co., Ltd., for an inter partes reexamination of Patent 7,121,982 (“the ’982 Patent”). Claims 1-28 were subject to the reexamination and confirmed. RAN 1.1 Requester appeals under 35 U.S.C. §§ 134(c) and 315(b) (2002) from the Examiner’s decision to confirm the claims. App. Br. 4.2 Patent Owner, IA Labs CA, LLC, urges the Examiner’s decision be affirmed. Resp. Br. 22.3 We have jurisdiction of the appeal under 35 U.S.C. §§ 134 and 315. We affirm. THE INVENTION The ’982 Patent “pertains to an isometric exercise system that serves as a computer system peripheral and facilitates user interaction with a host computer system while the user performs isometric exercises.”4 Col. 1, ll. 11-14. In particular, the user interacts with the isometric exercise system to control a virtual reality scenario on the host computer system. Col. 7, ll. 5-12, ll. 27-31. 1 Right of Appeal Notice (mailed August 3, 2011). The Examiner’s Answer mailed September 12, 2012, incorporates the RAN by reference. 2 Appeal Brief (filed April 2, 2012). Requester also filed a rebuttal brief on October 12, 2012 (“Reb. Br.”). 3 Respondent Brief (filed April 23, 2012). 4 Isometric exercise involves a body part exerting a force but without moving. In contrast, isotonic exercise involves movement of the body part in question. See declaration by Anthony J. Bull, Ph.D. signed October 1, 2010 (“Bull Decl.”) ¶ 18 (referring to isometric exercise as “static” exercise and isotonic exercise as “dynamic” exercise). App Reex Paten and p gene (e.g. elast comp defo type sens ll. 47 to th scen defo or ob and i eal 2013-0 amination t 7,121,98 The isom rocessor. rally cylin , a metal a ic limit in ression fo rmations a s of straini ors dispose -52. The e host com ario. Col 6 rmations m ject withi Figure 2 s reproduc 05425 Control N 2 B2 etric exer Col. 5, ll. drical bar lloy) that i response t rces.” Co pplied to e ng forces d at suitab measured puter syst , l. 45 – c ay be use n the virtu of the ’98 ed below. o. 95/001 cise system 19-52. “T or rod con s capable o any com l. 5, ll. 38- ffector [], applied by le location deformatio em to cont ol. 7, l. 18 d to effect al reality s 2 Patent il ,460 3 includes he effecto structed of of being sl bination o 42. “The which is p the user, i s on the e ns are pro rol movem . For exam correspon cenario. C lustrates a , at least, o r includes any suita ightly defo f bending, amount an roportiona s measura ffector ba cessed loc ents with ple, the m ding move ol. 11, ll. n embodim ne effecto an elonga bly rigid m rmed with twisting, d types of l to the am ble by one r[.]” Col. ally and tr in the virtu easured ment of a 2-6. ent of the r, sensor, ted and aterial in its tension an ount and or more 5, ansmitted al reality character invention d Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 4 Figure 2, reproduced above, shows isometric exercise system 100 coupled to host computer system 20. Col. 5, ll. 9-11, col. 8, ll. 59-62. The isometric exercise system includes seat 103 for a user and base members 101 and 102 attached to one another to form a T-shaped base for the system. Col. 7, l. 66 – col. 8, l. 5. First effector bar 104 extends at an upward angle from the juncture of the base members and toward the seat. Col. 8, ll. 13-16. Second and third effector bars 106 and 108 extend from the free end of the first effector bar. Col. 8, ll. 16-20. Strain gauge sensors 110, 112, 114, and 116 are positioned on the effector bars to measure deformation of them by a user gripping the second and third effector bars and applying force. Col. 8, ll. 34-51. The sensors are connected to control circuitry 200, which contains a processor for processing sensor data and transmitting the processed data to the host computer system to control the virtual reality scenario. Col. 8, ll. 52-53, col. 11, ll. 2-20. The ’982 Patent contains two independent claims, which are reproduced below with emphasis added. 1. An isometric exercise system serving as a peripheral to manipulate a virtual reality scenario of a host processing system in accordance with user exercise, comprising: a frame to support a user; an effector to provide an isometric exercise for said user, wherein said effector is fixedly secured to said frame and includes an elongated rod; at least one sensor coupled to said rod and responsive to at least one force applied by said user to said effector to perform said isometric exercise, wherein said applied force effects a measurable deformation of said rod that is measured by said at least one sensor; and Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 5 a processor coupled to said at least one sensor and including a data processing module to receive and process data corresponding to applied force information measured by said at least one sensor and to transfer information to said host processing system to control said virtual reality scenario of said host processing system in accordance with performance of said isometric exercise and manipulation of said effector by said user. 9. A method of performing an isometric exercise utilizing a system that serves as a peripheral to manipulate a virtual reality scenario of a host processing system, wherein said system includes a frame to support a user, an effector including an elongated rod, at least one sensor coupled to said rod, and a processor, the method comprising: (a) measuring at least one force applied by a user to said effector, wherein said effector provides an isometric exercise for said user and is fixedly secured to said frame, and wherein said applied force effects a measurable deformation of said rod that is measured by said at least one sensor; (b) processing data corresponding to applied force information measured by said at least one sensor; and (c) transferring information from said processor to said host processing system to control said virtual reality scenario of said host processing system in accordance with performance of said isometric exercise and manipulation of said effector by said user. App. Br. 54, 56. EVIDENCE The Requester relies upon the following prior art references: Braeunig Daniels Jarvik Poulton Brawne US 4,925,189 US 5,409,435 US 5,577,981 US 5,702,323 US 5,805,138 May 15, 1990 Apr. 25, 1995 Nov. 26, 1996 Dec. 30, 1997 Sep. 8, 1998 Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 6 Rosenberg Peterson Wolff Suzuki ’373 Suzuki ’745 Yamashima US 6,259,382 US 6,267,733 US 6,325,767 JP H6-282373 JP H7-213745 JP 2001-176845 Jul. 10, 2001 Jul. 31, 2001 Dec. 4, 2001 Oct. 7, 1994 Aug. 15, 1995 July 3, 2001 Dang et al., Interactive Video Exercise System for Pediatric Brain Injury Rehabilitation, RESNA ’98, pp. 78-80 (June 26-30, 1998) (“Dang”) The Requester also relies on declarations by Anthony J. Bull, Ph.D., signed October 1, 2010 (“Bull Decl.”) and by R. Lee Rawls signed February 17, 2011 (“Rawls Decl.”). REQUESTER-PROPOSED REJECTIONS Requester appeals the Examiner’s refusal to finally reject the claims as follows: 1. Claims 1, 4-6, 8, 9, 12-14, 16-23, 25, 27, and 28 under 35 U.S.C. § 102 as anticipated by Dang. 2. Claims 1-16 and 23-28 under 35 U.S.C. § 102 as anticipated by Brawne. 3. Claims 1, 2, 4-6, 9, 10, 12-14, 19, 22, 24, and 26 under 35 U.S.C. § 102 as anticipated by Yamashima. 4. Claims 1-3, 5-11, and 13-28 under 35 U.S.C. § 103 as unpatentable over Jarvik and Daniels. 5. Claims 1-28 under 35 U.S.C. § 103 as unpatentable over Dang and Brawne. Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 7 6. Claims 1-16 and 23-28 under 35 U.S.C. § 103 as unpatentable over Brawne and Rosenberg. 7. Claims 3, 7, 11, and 15 under 35 U.S.C. § 103 as unpatentable over Brawne and Braeunig. 8. Claims 3 and 11 under 35 U.S.C. § 103 as unpatentable over Brawne and Wolff. 9. Claims 7 and 15 under 35 U.S.C. § 103 as unpatentable over Brawne and Poulton. 10. Claims 17-22 under 35 U.S.C. § 103 as unpatentable over Brawne and Peterson. 11. Claims 1, 2, 4-10, 12-17, 19, 20, and 22-28 under 35 U.S.C. § 103 as unpatentable over Suzuki ’745 and Suzuki ’373. LEGAL PRINCIPLE “During reexamination, as with original examination, the PTO must give claims their broadest reasonable construction consistent with the specification.” See In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir. 2010). ANALYSIS Anticipation by Dang Requester argues that claims 1, 4-6, 8, 9, 12-14, 16-23, 25, 27, and 28 are anticipated by Dang. Dang discloses an interactive video exercise system for pediatric brain injury rehabilitation. Dang 1. The Dang system includes an isometric exercise system coupled to a Super NESTM system. App Reex Paten The below syste ankl attem load clam from mou The with LC1 dors meas a vid defo eal 2013-0 amination t 7,121,98 isometric e . Figure 1 m with a s e and foot pted knee cell (LC1) ps to the t LC1 to an nted betwe patient’s f two Velcr measures iflexion of ures the fo eo game b Indepen rmation of 05425 Control N 2 B2 xercise sy , reproduc eated user are secure extension is mounte wo rear leg ankle ban en two alu oot rests o o® straps. the force e the ankle rce exerte eing execu dent claim said rod t o. 95/001 stem is ill ed above, . It includ d in order and attem d onto a m s of the ch d on the p minum pl n the top p Id. Whe xerted. Id (so as to ra d. Id. Ul ted by the 1 requires hat is mea ,460 8 ustrated in illustrates es a chair to measure pted ankle etal cross air. Id. A atient. Id ates under late again n the patie . Similarl ise the toe timately, th Super NE “said app sured by sa Figure 1, the Dang i for a pedi two isom dorsiflex -bar (not s high ten . A second neath the p st a heel st nt attempt y, when th s closer to ese isome STM. Id. lied force id sensor which is r sometric e atric patien etric exerc ion. Dang hown), wh sile cable e load cell atient’s fo op and is s s to extend e patient a the shin) tric exerc effects a m .” Similar eproduced xercise t whose ises: 2. A first ich xtends (LC2) is ot. Id. ecured his knee, ttempts , LC2 ises contro easurable ly, l App Reex Paten indep defo Exam foun rod. bar o not t that elon state Inter and a cell. shee show are r cell h eal 2013-0 amination t 7,121,98 endent cl rmation of iner did n d that Dan RAN 6-7 f Dang to each meas Request the load se gated rods s that LC1 face, Inc. declarati Mr. Rawl t were rem n in sketc eproduced Mr. Raw aving an 05425 Control N 2 B2 aim 9 requ said rod t ot finally g did not t , 38. In pa which LC uring any er does not nsors them whose def and LC2 Dang 2. R on by Mr. s testifies oved, the hes provid below wit ls’s sketch S-shape. R o. 95/001 ires “said hat is mea reject any each meas rticular, th 1 is mount deformatio challenge selves (L ormation are “super equester r Rawls to e that if a co structure o ed by Mr. h his anno es, reprod equester ,460 9 applied fo sured by sa claims as uring the d e Examine ed is an el n of that r that speci C1 and LC is measure -mini, sing elies on a xplain the ver shown f the load Rawls. R tations. uced abov argues tha rce effects id at least anticipated eformatio r found th ongated ro od. RAN fic finding 2) contain d. App. B le-axis loa data sheet configura on the In cell would awls Decl e, depict t t (1) the m a measura one senso by Dang n of an elo at the met d but that 6. . Instead, within th r. 11-14. d cells” fr from Inte tion of suc terface, In be reveal . ¶ 5. His wo views iddle porti ble r.” The because h ngated al cross- Dang doe it argues em Dang om rface, Inc. h a load c., data ed as sketches of a load on of the e s , Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 10 load cell is an elongated rod and, alternatively, (2) the entire S-shaped load cell is an elongated rod. App. Br. 12-18. We disagree with both arguments, as did the Examiner. See RAN 6-7. Requester’s proposed implicit construction of elongated rod, which would encompass the middle portion of the S-shaped load cell and/or the entire cell, is both unreasonable and not consistent with the Specification of the ’982 Patent. See Suitco Surface, 603 F.3d at 1259. The Specification of the ’982 Patent states that the isometric exercise system employs an effector “preferably in the form of an elongated rod or bar.” Col. 5, ll. 19-21. As the Examiner noted, the Specification does not define elongated rod but a preferred embodiment employs “effectors bars” 104, 106, and 108 that are illustrated as shafts having lengths many times their diameters. RAN 6; ’982 Patent, Fig. 2. Additionally, they are illustrated as being straight, without bends or curves in their longitudinal direction. The Examiner cited dictionary definitions of elongated as “extended; lengthened” and rod as “a stick, wand, staff or the like, of wood, metal or other material” or “a slim cylinder of metal, wood, etc.; stick or shaft.” RAN 6 (citing “Dictionary.com” (i.e., dictionary.reference.com)).5 The Examiner thus construed the combined phrase elongated rod as “an extended or lengthened stick, shaft or staff.” RAN 6. We see no error in the Examiner’s construction. 5 The Examiner also cites a definition of rod as “a straight slender cylindrical formation.” RAN 6. But, that definition is from a medical context. See http://dictionary.reference.com/browse/rod?s=t (last visited Nov. 12, 2013). Accordingly, we do not rely on that additional definition. Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 11 LC1 and LC2 are not elongated rods and do not contain elongated rods. Thus, Dang does not teach measuring the deformation of an elongated rod. Accordingly, we affirm the Examiner’s decision not to finally reject any claims as anticipated by Dang. Obviousness over Suzuki ’745 and Suzuki ’373 Requester argues that claims 1, 2, 4-10, 12-17, 19, 20, and 22-28 would have been obvious over Suzuki ’745 and Suzuki ’373. However, Requester’s argument is based on construing elongated rod to read on an S- shaped load cell similar to the ones used by Dang. See Suzuki ’373, Fig. 5; see also App. Br. 49-51. For the same reasons discussed above with respect to Dang’s load cells, the S-shaped load cell of Suzuki ’373 is not an elongated rod and does not include an elongated rod. Accordingly, we affirm the Examiner’s decision not to finally reject any claims as unpatentable over Suzuki ’745 and Suzuki ’373. Anticipation by Brawne Requester argues that claims 1-16 and 23-28 are anticipated by Brawne. Brawne discloses an input device that translates movement of large body parts or multiple body parts into data that can be recognized by a computer system. Brawne col. 1, ll. 60-63. Brawne Figure 2C is reproduced below. App Reex Paten inpu ll. 8- the u rigid hand even 17; c Figu to se 18, l said fixed mean eal 2013-0 amination t 7,121,98 Figure 2 t device, w 9. It inclu ser sits. C support m les for gri twisted, th ol. 12, ll. 2 re 2C, “po nse movem l. 19-20. Indepen frame.” In ly secured that the e 05425 Control N 2 B2 C, reprodu hich is res des rigid s ol. 12, ll. ember and pping by th us provid 3-29; col sition sens ent of the dent claim dependen to said fr ffector an o. 95/001 ced above ponsive to upport me 21-23. Ri includes e user. T ing multip . 12, l. 57 – ors,” whic riser mem 1 requires t claim 9 a ame.” The d frame “th ,460 12 , depicts a the gross mber 206 ser membe cross mem he riser m le degrees col. 13, l h may be ber. Col. that the “ lso require Examine at are firm sectional body mot having sur r 200 exte ber 208, w ember “ma of movem . 4. Altho strain gaug 13, l. 26 – effector is s that the r construe ly secure view of th ion of a us face 216 o nds upwar hich inclu y be pivo ent.” Col ugh not ill e sensors col. 14, l fixedly se “effector d fixedly se d together e Brawne er. Col. 1 n which d from the des ted and . 2, ll. 14- ustrated in , are used . 32, col. cured to . . . is cured to do not , Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 13 move relative to each other.” RAN 7-8.6 As a result, the Examiner did not finally reject any claims as anticipated by Brawne because the riser member moves relative to the support member. RAN 8. The Examiner’s construction is based on extrinsic and intrinsic evidence. The Examiner cited a dictionary definition of fixed as “fastened, attached or placed so as to be firm and not readily movable; firmly implanted; stationary; rigid” or “attached or placed so as to be immovable.” RAN 7 (citing dictionary.reference.com). The Examiner also noted that the effector being immovable with respect to the frame is what allows for the isometric exercise required by the claims. Requester argues that the Examiner has construed fixedly secured too narrowly. We disagree with the Requester. See ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082, 1088 (Fed. Cir. 2003) (“While certain terms may be at the center of the claim construction debate, the context of the surrounding words of the claim also must be considered in determining the ordinary and customary meaning of those terms.”). The broadest reasonable construction consistent with the specification and surrounding claim language, both of which are directed to isometric exercise, precludes movement of the effector relative to the frame at their point of securing. In contrast, Brawne is directed to isotonic exercise, with the riser specifically designed to move relative to the support member to enable the isotonic exercise. 6 We interpret the Examiner’s construction as meaning that they do not move relative to each other at their point of securing. Thus, the Examiner’s construction does not preclude elastic deformation of the effector in response to an applied force. Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 14 Requester also relies on an unrelated decision, Ex Parte Wolfe, Appeal No. 2004-1586 (Aug. 9, 2004), involving unrelated patent application No. 10/132,863 (“the ’863 Application”). App. Br. 19. Requester asserts that Wolfe controls here because, in that case, as here, the term fixedly secured was not defined and “the specification professes a desire for a broad interpretation inclusive of any modifications or changes.” App. Br. 20. We are not persuaded. The patent application in Wolfe was directed to a keychain assembly for a plurality of keys. U.S. Pat. Appl. Publication No. 2003/0200687 A1. Because we give claims their broadest reasonable construction consistent with the specification, see Suitco Surface, 603 F.3d at 1259, it necessarily follows that a different specification may result in a different construction, especially when the application is from a different art altogether. Wolfe has nothing to do with isometric exercise. We are not bound by it, and we do not find it persuasive as to the claim construction in this case. Requester also relies on declaration testimony. App. Br. 22 (citing Rawls Decl. ¶ 3c). But, that testimony is conclusory and not persuasive. We determine no error in the Examiner’s construction. Brawne does not disclose an effector that is “fixedly secured” to the frame as required by the claims. Accordingly, we affirm the Examiner’s decision not to finally reject any claims as anticipated by Brawne. Obviousness over Dang and Brawne Requester argues that all of claims 1-28 of the ’982 Patent are obvious over Dang and Brawne. The Examiner did not finally reject the claims as Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 15 proposed because he found that neither reference teaches measuring the deformation of an elongated rod. RAN 9. With respect to Dang, we have already considered above whether Dang teaches measuring deformation of an elongated rod. We found that it does not. With respect to Brawne, we discern no express teaching of measuring any deformation of an elongated rod. In Brawne, the riser member is specifically designed to move relative to the rigid support member, and it is this movement or “displacement” that Brawne states is measured. See Brawne col. 18, ll. 16-20. Requester points out that Brawne discloses the use of strain gauges, which Requester argues “also measure deflection, absent a compelling reason Brawne’s strain gauges are functionally and operationally different than . . . the ’982 patent’s strain gauges.” App. Br. 39-40. However, Requester has not sufficiently shown that the Brawne strain gauges necessarily measure deformation of the riser member. It is not the Examiner’s or Patent Owner’s burden to show that Brawne’s strain gauges do not inherently measure deformation of the riser member. Moreover, Requester has not sufficiently explained why a person of ordinary skill in the art would modify the isotonic system of Brawne in view of Dang’s isometric system while preserving the Brawne sensors, which Brawne expressly discloses as measuring displacement (which would no longer exist) but not deformation. Further, the proposed combination lacks an effector that is fixedly secured to the frame, as also required by the claims. Requester argues that modifying Brawne in view of Dang’s isometric teaching “would not have Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 16 required any structural change to Brawne. It merely would require a stiffer spring device and/or seal to provide increased resistance and, thus, would further inhibit the movement of the whole body joystick device by raising the forces involved in using the device.” App. Br. 40 (citing Rawls Decl. ¶ 8). However, simply increasing the resistance to relative movement between the riser member and the rigid support member, without actually fixedly securing them to one another, does not satisfy the claim requirement for the effector to be fixedly secured to the frame. For the foregoing reasons, we affirm the Examiner’s decision not to finally reject any claims as unpatentable over Brawne and Dang. Obviousness over Brawne and Additional Art Requester argues that various subsets of claims of the ’982 Patent would have been obvious over Brawne in combination with Rosenberg, Braeunig, Wolff, Poulton, or Peterson. The Examiner did not finally reject the claims as proposed, in part, because the proposed combinations did not provide a teaching of an effector that is fixedly secured to the frame. RAN 10-12. As discussed above, the Brawne riser member is not fixedly secured to the rigid support member. The Examiner found that Requester did not rely upon the secondary references as teaching an effector that is fixedly secured to the frame and, in any event, that they (like Brawne) lack such a teaching. RAN 10-12. On appeal, Requester argues that Rosenberg and Wolff teach an effector that is fixedly secured to the frame but does not argue that Braeunig, Poulton, or Peterson teach this element. App. Br. 42-47. Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 17 Rosenberg teaches a user-manipulatable physical object such as a puck or mouse that can be moved. Col. 3, l. 64 – col. 4, l. 4. A mode selector is provided to select between isotonic or isometric modes. Col. 4, ll. 4-6. In the isometric mode, an actuator is used to oppose the user’s force to prevent motion. Col. 4, ll. 12-17. Thus, the puck or mouse is not fixedly secured to a frame. Rather, it is actively held in place by an actuator. Wolff is directed to measuring the force-exerting ability of individual muscle groups. Col 1, ll. 61-65. On appeal, Requester summarily asserts “Wolff’s effectors do not move during use” but fails to identify the alleged effectors to which it refers. App. Br. 45-46. The Examiner found: The effectors of Wolff move during use. While Wolff discloses items fastened to frame which will not use [sic, move] during use, these are not effectors as claimed, as no force exerted on them is sensed. As such the combination is seen to be lacking a teaching of an effector fixedly secured to the frame. RAN 28. In its reply brief, Requester does not address the Examiner’s findings with respect to Wolff. Requester has not shown that Brawne or any of the secondary references teach an effector that is fixedly secured to the frame. Accordingly, we affirm the Examiner’s decision not to finally reject any claims as unpatentable over Brawne and Rosenberg, Braeunig, Wolff, Poulton, or Peterson. Obviousness over Jarvik and Daniels Requester argues that claims 1-3, 5-11, and 13-28 would have been obvious over Jarvik and Daniels. The Examiner did not finally reject the claims as proposed because, in part, the proposed combinations do not Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 18 provide a teaching of an effector that is fixedly secured to a frame. RAN 12-13. Jarvik discloses “computer controlled exercise machines and provides the user with a wide variety of interactive exercise options controlled by software.” Abstract. “A virtual reality . . . is provided which permits the user to perform significant physical exertion by applying forces to the machine while viewing images on a head mounted display.” Id. Jarvik employs handles and “servo-controlled, actuators for each of the two handles, which are capable of positioning the handles to accommodate a wide range of motion for the exercising user, and are capable of applying high loads to the handles and measuring the applied forces.” Id. at col. 7, ll. 8-13. The Examiner found that Jarvik does not disclose an effector fixedly secured to a frame. RAN 12. We agree, as the handles are clearly not fixedly secured to a frame. Daniels teaches an “exercise device which may function to provide isometric, isotonic, isokinetic, and cardiovascular exercise selectively.” Daniels col. 3, l. 68 – col. 4, l. 2. The Examiner acknowledged that Daniels teaches isometric exercise (among other types) but found that it too failed to teach an effector that is fixedly secured to a frame. RAN 12-13. Requester argues, however, that modifying the Jarvik handles in view of Daniels’ isometric teaching results in the servo-controlled actuators exerting a great enough force to prevent significant movement of the handles to enable isometric exercise. App. Br. 34-35 (citing Bull Decl. ¶ 19). But, even if so modified, the handles would remain not fixedly secured to the frame. App Reex Paten Inste are t any c are a below capa meas ¶¶ 2 eal 2013-0 amination t 7,121,98 ad, they w emporarily Accordin laims as u Request nticipated . Yamash city loss p urement/t 1-24. The 05425 Control N 2 B2 ould rema immobili gly, we a npatentab A er argues t by Yamas ima Figure revention raining de system ma o. 95/001 in connect zed by an ffirm the E le over Jar nticipatio hat claims hima. Fig 6, reprod device” ha vices” 15 t y also inc ,460 19 ed to the f actively ap xaminer’s vik and D n by Yam 1, 2, 4-6, ure 6 of Y uced abov ving “han o which a lude a disp rame via m plied forc decision n aniels. ashima 9, 10, 12-1 amashima e, shows a dles” 9 and user may lay for pr oveable j e. ot to fina 4, 19, 22, is reprodu n exercise “foot are apply forc oviding fe oints that lly reject 24, and 26 ced or “limb a es. Id. at edback to Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 20 the user. Id. at ¶ 15. For example, a portion of the display can blink if the user exceeds a target force value. Id. Independent claim 1 requires “a processor coupled to said at least one sensor and including a data processing module . . . to transfer information to said host processing system to control said virtual reality scenario.” Similarly, independent claim 9 requires “transferring information from said processor to said host processing system to control said virtual reality scenario.” The Examiner did not finally reject the claims as anticipated by Yamashima because he found that Yamashima did not teach (1) the transfer of information to a host processing system from the processor that is coupled to the sensor or (2) providing a virtual reality scenario. RAN 8-9. With respect to the latter requirement of a virtual reality scenario, Requester notes that the Specification of the ’982 Patent refers to a user “interacting with a computer generated virtual reality scenario to control a variety of movements of a character or an object in the scenario as well as other features relating to the scenario.’” App. Br. 29 (citing ’982 Patent col. 3, ll. 1-9) (our emphasis). Requester argues that Yamashima disclose a virtual reality scenario because it discloses a display having a “character or image screen display.” App. Br. 30 (citing Yamashima ¶ 15) (our emphasis). However, the “character” in Yamashima’s “character . . . screen display” does not refer to a character in a video game or virtual reality scenario. Yamashima uses the term “character” juxtaposed to “image.” Yamashima ¶ 15. Thus, we find that Yamashima’s character screen display refers to a display that can exhibit alphanumeric characters and the like, as opposed to its image screen display, which can exhibit images. Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 21 Yamashima does not teach controlling a virtual reality scenario. Accordingly, we affirm the Examiner’s decision not to finally reject any claims as anticipated by Yamashima. DECISION The Examiner’s decision to not to finally reject claims 1-28 based on the proposed rejections of the Requester is affirmed. Requests for extension of time in this inter partes reexamination proceeding are governed by 37 C.F.R. §§ 1.956. AFFIRMED Appeal 2013-005425 Reexamination Control No. 95/001,460 Patent 7,121,982 B2 22 PATENT OWNER: MEYERTONS, HOOD, KIVLIN, KOWERT & GOETZEL, P.C. P.O. BOX 398 AUSTIN TX 78767-0398 THIRD PARTY REQUESTER: GORDON P. KLANCNIK NIXON & VANDERHYE, P.C. 901 NORTH GLEBE ROAD 11TH FLOOR ARLINGTON, VA 22203 cu