Ex Parte Amaitis et al

Patent Trial and Appeal Board

Nov 30, 2016

13561274 (P.T.A.B. Nov. 30, 2016)

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.
13/561,274 07/30/2012 Lee M. Amaitis 04-7121-C2 4929
63710 7590 12/02/2016
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
HSU, RYAN
ART UNIT PAPER NUMBER
3716
NOTIFICATION DATE DELIVERY MODE
12/02/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patentdocketing @ cantor.com
lkoro vich @ c antor. com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEE M. AMAITIS, JOSEPH M. ASHER, ALAN B. WILKINS,
HOWARD W. LUTNICK, and DARRIN M. MYLET
Appeal 2015-002292
Application 13/561,274
Technology Center 3700
Before LINDA E. HORNER, THOMAS F. SMEGAL, and LISA M. GUIJT,
Administrative Patent Judges.
GUIJT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants1 seeks our review under 35 U.S.C. § 134 of the
Examiner’s decision2 rejecting claims 1—10, 12, 13, 18, and 21—33.3 We
have jurisdiction under 35 U.S.C. § 6(b).
1 Appellants identify the real party in interest as CFPH, LLC. App. Br. 2.
2 Appeal is taken from the Final Office Action dated May 10, 2013 (“Final
Act.”).
3 Although claim 11 is listed as an appealed claim subject to a rejection,
claim 11 was omitted from the claims as originally filed with the application
Appeal 2015-002292
Application 13/561,274
We REVERSE.
CLAIMED SUBJECT MATTER
Claims 1 and 26, reproduced below as the independent claims on
appeal, are illustrative of the subject matter on appeal.
1. An apparatus comprising:
at least one processor; and
at least one memory device electronically coupled to the
at least one processor, in which the memory device stores
instructions which, when executed by the at least one processor,
direct the at least one processor to:
responsive to a user using a device to access a gaming
system to engage in at least one gaming activity, determine
whether the user’s device is located within a predefined location,
wherein to determine whether the user’s devices is located within
the pre-defmed location includes to make the determination
through an identification of which network, portion of a network,
or network component the user’s device is using to access the
gaming system, and to make the determination of whether the
identified network, portion of a network, or network component
is within the pre-defmed location; and
allow the user to engage in the at least one gaming activity
from the user’s device based upon the determination that the
user’s device is located in the pre-defmed location.
26. A method comprising:
responsive to a user using a device to access a gaming
system to engage in at least one gaming activity, determining by
at least one server whether the user’s device is located within a
pre-defmed location, wherein determining whether the user’s
device is located within the pre-defmed location includes making
the determination through an identification of which network,
portion of a network, or network component the user’s device is
using to access the gaming system, and making the determination
of whether the identified network, portion of a network, or
network component is within the pre-defmed location; and
on July 30, 2012, which included only claims 1—10 and 12—32.
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allowing by the at least one server the user to engage in the
at least one gaming activity from the user’s device based upon
the determination that the user’s device is located in the pre­
defined location.
REJECTIONS4
I. Claims 1, 2, 4, 5, 8—10, 18, 21—23, 26—28, 30, and 33 stand
rejected under 35 U.S.C. § 102(e) as anticipated by Steelberg (US 7,460,863
B2; iss. Dec. 2, 2008). Final Act. 4—7.
II. Claims 3 and 29 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Steelberg and Zilliacus (US 6,893,347 Bl; iss. May 17,
2005). Final Act. 8.
III. Claims 6, 12, 13, 24, 25, and 31 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Steelberg and Wells (US 6,846,238 B2; iss.
Jan. 25, 2005). Final Act. 9—10.
IV. Claims 7 and 32 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Steelberg, Wells, and LaDue (US 5,999,808; iss. Dec. 7,
1999). Final Act. 10.
V. Claims 1—10, 12, 13, 18, and 21—33 stand rejected under 35
U.S.C. § 101 as being directed to ineligible subject matter. Ans. 2—5.5
ANALYSIS
Rejection I
Regarding independent claim 26, the Examiner finds, inter alia, that
4 Upon return of jurisdiction of this application to the Examiner, the
Examiner should note that claim 22 depends from claim 22.
5 The Examiner states this rejection in the Examiner’s Answer as a new
ground of rejection.
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Steelberg discloses determining whether the user’s device is
located within the authorized gaming area includes making the
determination through the use of geo-fencing (see col. 10: In
189-31, col. 49-61). In at least one embodiment, Steelberg
discloses determining whether the user’s device is located within
the authorized gaming location through the use of a location file
provided by the server that provides an authorized gaming area
for a user’s device (see col. 3:ln 1-31, col. 10: In 55-62, col. 11:
In 1-16). The gaming device then utilizes an identification of
which network, portion of a network, or network component the
user’s device is using to access the gaming system to make a
determination of whether the identified network, portion of a
network, or network component is within the pre-defmed
location during the initial activation and approval process (see
col. 9: In 55-65, col 10: In 49-62, col. 11: In 1-16). In alternative
embodiments, this network identification information may be
performed by a position location system utilizing a GPS chip (see
col. 11: In 23-32).
Final Act. 6.
Referencing Steelberg’s disclosure of “a device [that] uses RFTTT or
GPS to determine the location of the device,” Appellants argue, inter alia,
that
the cited portions of Steelberg provide no discussion that
determining whether the device is located in an authorized
location includes making the determination of whether a
broadcast station (as used in the context of Steelberg) that a
device is using to access a gaming system is within the
authorized location or more specifically, “making the
determination of whether the identified network, portion of a
network, or network component [that a device is using to access
the gaming system] is within the pre-defmed location,” as recited
in claim 26.
App. Br. 7.
The Examiner responds, inter alia, that Steelberg “implements [at]
least three different methods to determine whether the user’s device is
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Application 13/561,274
located within the predefined location (see col. 2: In 48-61)[:] GPS, radio
frequency triangulation telemetry tracking (RFTTT) and utilizing a centrum
datum broadcast with an associated radium datum (see col. 11: In 1-27, col.
13: In 25-37),” noting that “a central datum utilizes a network to deliver data
within a predefined radius.” Ans. 7, see fh 1.
We agree with Appellants that Steelberg’s disclosure of using GPS or
RFTTT technology to determine the location of the remote gaming device
and comparing the location to location data to determine whether the remote
gaming device is within a pre-defmed gaming area does not meet the claim
limitation of “making the determination through an identification of which
network ... the user’s device is using to access the gaming system,” because
Steelberg discloses that the network the user’s device is using to access the
gaming system is the broadcast station, and Steelberg does not disclose, nor
does the Examiner find, that the networks associated with the GPS or
RFTTT technology are also networks the user’s device is using to access the
gaming system.
The Examiner also relies on the embodiment in Steelberg that
“implements] a relatively low-power regional broadcast station somewhere
about the premises [(of a gambling casino)],” (Steelberg 13:25—32) as
disclosure of the claimed determining step. We cannot find, however, an
explicit disclosure in Steelberg of identifying which network the user’s
device is using to access the gaming system and making a determination of
whether the identified network is within the pre-defmed location, as recited
in claim 26. With respect to this embodiment, Steelberg discloses that
[l]ocation information is suitably broadcast as a centrum datum
with an associated radium datum, so as to substantially cover the
floor plan footprint of the casino at issue. If a user is indeed
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within the confines of the casino premises, the card [(or device)]
is active and the user is able to access electronic games hosted
on the casino’s regional broadcast station.
Steelberg 13:32—38; see Ans. 5 (“Steelberg discloses . . . determining]
whether the user’s device is located within the predefined location using . . .
a centrum datum broadcast with an associated radium datum.”); see also
Ans. 7 (citing Steelberg 13:25—37). Although the smart card is active if the
smart card is receiving location information broadcast from the relatively
low-power regional broadcast station somewhere on the premises, Steelberg
stops short of expressly disclosing identifying the relatively low-power
regional broadcast station as the network the user’s device is using to access
the gaming system in order to determine whether the user’s device is located
within the pre-defmed location. In addition, Steelberg fails to expressly
disclose that there is a determination of whether the identified network is
within the pre-defmed location; rather, the relatively low-power regional
broadcast station is, by default, within the casino premises.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 26, and claims 18, 21—23, 27, 28, and 30 depending
therefrom. Because the Examiner relies on the same findings for the
rejection of independent claim 1, for the same reasons as stated supra, we
also do not sustain the Examiner’s rejection of independent claim 1 and
claims 2, 4, 5, 8—10, and 33 depending therefrom.
Rejections II—IV
The Examiner’s rejection of dependent claims 3, 6, 7, 12, 13, 24, 25,
29, 31, and 32 relies on the same findings with respect to independent claims
1 and 26 discussed supra. Therefore, we also do not sustain the Examiner’s
rejection of claims 3, 6, 7, 12, 13, 24, 25, 29, 31, and 32.
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Rejection V
The Examiner rejects claims 1—10, 12, 13, 18, and 21—33 under 35
U.S.C. § 101 “as being directed to ineligible subject matter.” Ans. 2. In
particular, the Examiner finds that independent claims 1 and 26 “are directed
towards an apparatus and method to allow the user to engage in at least one
gaming activity from the user’s device based upon the determination that the
user’s device is located in a pre-defmed location.” Id. at 4. The Examiner
determines that these claims “are similar to claims at issue in Bilski v.
Kappos, 130 S. Ct. 3218 (2010) and Alice[ Corp. Pty Ltd. v. CLSBank
Int’l], 134 S. Ct. 2347 [(2014)], which the Supreme Court held were directed
to ‘abstract ideas.’” Id. More specifically, the Examiner finds that “the
claims are directed to the abstract idea of (i) a method of organizing human
activities in a gaming environment, [and] (ii) and idea of itself for
determining whether the user’s device is located within the pre-defmed
location.” Id. Appellants argue, inter alia, that the Examiner’s finding is a
conclusory opinion that lacks sufficient evidence to show that “the alleged
abstract idea is abstract.” Reply Br. 2.
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “laws of nature, natural phenomena, and
abstract ideas” are not patentable. See, e.g., Alice Corp. Pty Ltd. v. CLS
BankInt’l, 134 S. Ct. 2347, 2354 (2014). In analyzing patent eligibility
questions under 35 U.S.C. § 101, the Supreme Court instructs us to “first
determine whether the claims at issue are directed to a patent-ineligible
concept.” Id. at 2355. Alice provides several broad examples of what might
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constitute an abstract idea, including: (1) fundamental economic practices;
(2) certain methods of organizing human activities; (3) an idea of itself and
(4) mathematical relationships or formulae. See id. at 2350; 2356.
We determine that the subject matter of independent claims 1 and 26
are not merely directed to organizing human activities in a gaming
environment, but rather, the claims more specifically address a gaming
environment which includes a user device, network, and pre-defmed area,
wherein computer technology is used to determine, responsive to a user
using the device to access the gaming system, whether a gaming device is in
a pre-defmed area by identifying which network the user’s device is using
and allowing the gaming activity based on the determination. Unlike risk
hedging in Bilski, the concept of determining whether a gaming device is in
a pre-defmed area by identifying which network is being used to access the
gaming system is not a fundamental practice of organizing human activity
within a certain environment. We also find the recitations of claims 1 and
26 sufficiently concrete as to set them outside the broad definition of an
abstract idea itself as set forth in Alice. Thus, we conclude that the
Examiner did not establish by a preponderance of the evidence that
independent claim 1 and 26, and claims 2—10, 12, 13, 18, 21—25, and 27—33
are unpatentable under 35U.S.C. § 101.
DECISION
The Examiner’s decision to reject claims 1, 2, 4, 5, 8—10, 18, 21—23,
26-28, 30, and 33 under 35 U.S.C. § 102(e) is REVERSED.
The Examiner’s decisions to reject claims 3, 6, 7, 12, 13, 24, 25, 29,
and 31, and 32 under 35 U.S.C. § 103(a) are REVERSED.
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The Examiner’s decision to reject claims 1—10, 12, 13, 18, and 21—33
under 35 U.S.C. § 101 is REVERSED.
REVERSED
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