Ex Parte Barros et alDownload PDFBoard of Patent Appeals and InterferencesMay 18, 200910455646 (B.P.A.I. May. 18, 2009) Copy Citation 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). Appeal 2009-0021 Application 10/455,646 2 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, Appeal 2009-0021 Application 10/455,646 3 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? Appeal 2009-0021 Application 10/455,646 4 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 Appeal 2009-0021 Application 10/455,646 5 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’ Appeal 2009-0021 Application 10/455,646 6 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.) Appeal 2009-0021 Application 10/455,646 7 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 Appeal 2009-0021 Application 10/455,646 8 BRYAN W. 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