Ex Parte Barros et al

Board of Patent Appeals and Interferences

May 18, 2009

10455646 (B.P.A.I. May. 18, 2009)

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.
10/455,646 06/05/2003 Mark Barros M006.P009U1 5885
25854 7590 05/18/2009
BRYAN W. BOCKHOP, ESQ.
BOCKHOP & ASSOCIATES, LLC
2375 MOSSY BRANCH DR.
SNELLVILLE, GA 30078
EXAMINER
HARPER, TRAMAR YONG
ART UNIT PAPER NUMBER
3714
MAIL DATE DELIVERY MODE
05/18/2009 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte MARK BARROS,
JAMES HYMEL, and MINH PHAM
__________

Appeal 2009-0021
Application 10/455,646
Technology Center 3700
__________

Decided:1 May 18, 2009
__________

Before DONALD E. ADAMS, ERIC GRIMES, and MELANIE L.
McCOLLUM, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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This is an appeal under 35 U.S.C. § 134 involving claims to a game
system and method. The Examiner has rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
The Specification discloses “a way to attract users to a store by
enhancing their interactive experience while executing applications on their
wireless devices. The method enables special features in an application
executed on a wireless device when the wireless device is within a
predefined vicinity of a store.” (Spec. 3: 14-17.) For example, “[b]y being
at a particular location, the user’s strength in [a] game may increase
significantly, or the game’s scenario may change to offer more rewards” (id.
at 6: 21-23).
Claims 1-4, 7, 8, and 19-21 are pending and on appeal (App. Br. 2).
We will focus on claim 1, which reads as follows:
1. A method for an application server to enable special features in a
game executed on a mobile device when a user uses the mobile device
within a predefined location, the mobile device being in communication with
a wireless communications network, comprising the steps of:
receiving a game enabling request from the mobile device;
in response to the game enabling request, sending a game enabling
signal to the mobile device, the game enabling signal capable of enabling a
game to be played on the mobile device by a player;
receiving a device location from the mobile device;
after receiving the device location, comparing the device location with
at least one predefined location stored in the application server; and
if the device location is within a predefined range of the at least one
predefined location, the predefined range corresponding to a range that
would require entry into the predefined location, then sending a feature
enabling signal to the mobile device rewarding the player for going to the
predefined location by enhancing the player’s ability to play the game while
playing the game,
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the game enabling signal enabling the game to be played on the
mobile device even when the mobile device is outside of the predefined
range of the at least one predefined location.
Claims 1-4, 7, 8, and 19-21 stand rejected under 35 U.S.C. § 103(a) as
obvious over Eck (US 6,884,171 B2, Apr. 26, 2005) in view of Ellenby
(US 2004/0219961 A1, Nov. 4, 2004) (Ans. 3).
The Examiner relies on Eck for teaching “a gaming system, including
a gaming system and method, in which an application server enables a game
to be executed on a mobile device when a user requests initiation of the
game” (Ans. 3). The Examiner relies on Ellenby for teaching “computer
games for a mobile device in network communication with a centralized
computer or application server . . . in which position or attitude of the mobile
device enhances game play” (id. at 4). The Examiner concludes that it
would have been obvious
to incorporate computer games for a mobile device in which
position or attitude of the mobile device enhances game play as
taught by Ellenby et al. into the gaming system taught by Eck et
al. in order to be highly interactive for mobile device users (as
taught in paragraph [0024] of Ellenby et at), and thereby
increasing player enjoyment and playing time of the game.
(Id.)
Appellants argue that “Ellenby does [not] teach enhancing a player’s
ability to play a game as a reward for being at a predefined location” (App.
Br. 5).
ISSUE
Did the Examiner err in concluding that Ellenby discloses rewarding a
player for going to a predefined location by enhancing the player’s ability to
play the game?
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FINDINGS OF FACT
1. Ellenby discloses a computer game system that responds to the
position and attitude of a mobile device (Ellenby, ¶ [0024]).
2. In particular, Ellenby discloses a game designated “GeoPet” in
which “a virtual entity is formed and subjected to travails of life and living.
The game play, i.e. the rules and function of the game[,] are partly brought
about by position and attitude measurements made at a mobile unit.” (Id. at
¶ [0035].)
3. As an example, Ellenby discloses that “properties including:
‘social conscience’; ‘health’; ‘spiritual’; ‘happiness’; ‘strength’; ‘net worth’;
‘beauty’; ‘hunger’; ‘intelligence’, among others, may reflect the state of a
GeoPet virtual entity throughout the co[u]rse of the game” (id. at ¶ [0047]).
4. Ellenby also discloses that “a game play scheme could have a
requirement that a virtual character be nourished from time-to-time
throughout its life. Failure to execute an ‘eat’ method could have
devastating effects on a GeoPet. The GeoPet could become malnourished,
sick or even be met with death as a result of starvation.” (Id. at ¶ [0055].)
5. In addition, Ellenby discloses:
[A] game scheme may be arranged to include a ‘play’ method
[that] . . . depends upon position and attitude. A player
executing a ‘play’ method causes her GeoPet to interact with
detected surroundings. For example, where a play method is
invoked on a freeway, a GeoPet may engage the dangers and
high risk of playing on a freeway. Although such freeway play
may be exhilarating and stimulate the highest response possible
with regard to excitement, such play may be accompanied by
immediate death. Frequently playing on freeways might bolster
the value of a ‘bravery’ property, it also might attract a
premature end to the game. Invoking a ‘play’ method at a
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gambling casino might bring rags-to-riches effects on a net
worth property. Alternatively, a riches-to-rags condition may
result. In either case, the position of the mobile unit at the time
the method is executed [a]ffects the ‘play’ method. By
addressing various places while invoking the ‘play’ method, a
player causes her GeoPet to play in a manner with regard to
those places.
(Id. at ¶ [0060].)
6. Ellenby also discloses that, “[w]hen a GeoPet reaches a
termination point, it is said to have ‘died’. The existence of the virtual entity
is extinguished and the game play is finished.” (Id. at ¶ [0079].)
PRINCIPLES OF LAW
“In determining whether obviousness is established by combining the
teachings of the prior art, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.” In re
GPAC Inc., 57 F.3d 1573, 1581 (Fed. Cir. 1995) (internal quotations
omitted).
ANALYSIS
Ellenby discloses that the “game scheme may be arranged to include a
‘play’ method [that] . . . depends upon position and attitude” (Finding of
Fact (FF) 5). For example, Ellenby discloses that, “where a play method is
invoked on a freeway, a GeoPet may engage the dangers and high risk of
playing on a freeway,” which “might bolster the value of a ‘bravery’
property” (id.). In addition, Ellenby discloses that “[i]nvoking a ‘play’
method at a gambling casino might bring rags-to-riches effects on a net
worth property” (id.). “In either case, [Ellenby discloses that] the position of
the mobile unit at the time the method is executed [a]ffects the ‘play’
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method. By addressing various places while invoking the ‘play’ method, a
player causes her GeoPet to play in a manner with regard to those places.”
(Id.) We find that this rewards the player for going to a predefined location
by enhancing the player’s ability to play the game. In particular, the player
would not be able to engage in particular “play” methods in the absence of
going to the predefined location, i.e., the freeway or the casino.
Appellants argue, however, that rewarding a player “for going to a
location by being given an enhanced ability to play the game . . . is different
from merely ‘enabling a special feature in the game’” (App. Br. 6). In
particular, Appellants argue:
Ellenby discloses a mobile gaming system that is responsive to
the position or attitude of a mobile device . . . in which some
occurrences in the game depend on the location of the player.
However, . . . Ellenby does not teach that the player’s ability to
play the game is enhanced in any way as a result of being at the
location. . . . While being sensitive to location might change
the nature of the game, it does not give the player an enhanced
ability to play the game.
(Id.) In addition, Appellants argue:
[B]eing in a certain location might change what happens when
playing a game, but the player’s ability to play the game
remains constant. In the feeding of the virtual pet example
discussed above, the virtual pet may be “fed” when the player
points [the] device at a restaurant, but there is no indication that
the player has an enhanced ability to play the game as a result
of such “feeding.” While it is possible that the virtual pet might
“die” if the player fails to “feed” it, the virtual feeding is simply
an event that prevents a punishment to the player; it does not
enhance the player’s ability to play the game in the future.
(Id. at 6-7.)
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We are not persuaded. As discussed above, we find that the ability to
engage in a particular “play” method enhances the player’s ability to play
the game. In particular, the player has an opportunity to bolster the value of,
for example, the “bravery” or “net worth” properties because the player went
to a predefined location.
With regard to “feeding” the virtual character, we do not rely on this
aspect of the game. Although we agree with the Examiner that feeding the
virtual character enhances the ability of the player to play the game by
extending the “life” of the virtual character (Ans. 5-6; FF 4), the Examiner
has not shown that feeding the virtual character enhances the player’s ability
to play the game “while playing the game,” i.e., before termination of the
game by, for example, the “death” of the virtual entity (FF 6).
CONCLUSION
Appellants have not shown that the Examiner erred in concluding that
Ellenby discloses rewarding a player for going to a predefined location by
enhancing the player’s ability to play the game. We therefore affirm the
obviousness rejection of claim 1. Claims 2-4, 7, 8, and 19-21 have not been
argued separately and therefore fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(vii).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

lp

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Application 10/455,646

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BRYAN W. BOCKHOP, ESQ.
BOCKHOP & ASSOCIATES, LLC
2375 MOSSY BRANCH DR.
SNELLVILLE GA 30078