Ex Parte Gould

Board of Patent Appeals and Interferences

Oct 20, 2010

10261245 (B.P.A.I. Oct. 20, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KENNETH GOULD
____________

Appeal 2009-008648
Application 10/261,245
Technology Center 3700
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Before LINDA E. HORNER, JOHN C. KERINS and
STEVEN D.A. McCARTHY, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-008648
Application 10/261,245

2
The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s 1
final decision rejecting claims 1-19 and 24-88. More specifically, the 2
Examiner rejects claims 1-14, 16-19, 24, 25, 28-40, 42-58, 61-73 and 75-78 3
under 35 U.S.C. § 102(a) as being anticipated by Sen (US 2002/0119821 4
A1, publ. Aug. 29, 2002); claims 26, 27, 59 and 60 under 35 U.S.C. § 103(a) 5
as being unpatentable over Sen and PacketCable™ Dynamic Quality-of-6
Service Specification (CableLabs®, Jan. 16, 2002) (“PacketCable”); and 7
claims 15, 41 and 74 under § 103(a) as being unpatentable over Sen. We 8
have jurisdiction over the appeal under 35 U.S.C. § 6(b). 9
The Appellant appeals only claims 1-19 and 24-78. (App. Br. 2.) 10
Since the Appellant does not appeal the rejections of claims 79-88 under 11
§ 102(a) as being anticipated by Sen, we DISMISS the appeal as to claims 12
79-88. We suggest that the Examiner cancel the non-appealed claims 79-88 13
and so notify the Appellant, when the application is returned to the 14
Examiner. See MANUAL OF PATENT EXAMINING PROCEDURE § 1215.03. 15
The rejections of claims 1-19 and 24-78 remain for consideration. We 16
do not sustain those rejections. 17
Claims 1, 24, 46, 56 and 57 are independent. Claim 1 is illustrative of 18
the claims on appeal: 19
1. A method for providing enhanced quality-20
of-service to an online gaming user comprising: 21
22
connecting a game console to a gaming web 23
server, wherein the gaming web server is 24
connected to a cable network and wherein 25
the game console is connected to the cable 26
network via a cable modem; 27
28
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selecting a game from the gaming web 1
server; 2
3
matching the game selection to a set of 4
quality-of-service parameters determined by 5
the gaming agent from the game selection 6
without further input from the online gaming 7
user; 8
9
transmitting a request from the gaming agent 10
to a cable modem termination system 11
(CMTS) to provision the cable network with 12
the set of quality-of-service parameters 13
determined by the gaming agent from the 14
game selection, wherein the CMTS 15
comprises instructions for managing 16
network resources associated with the cable 17
network; 18
19
polling the cable network from the CMTS to 20
determine whether the CMTS can grant the 21
quality of service request; and 22
23
if the CMTS grants the quality of service 24
request, then providing service over the 25
cable network to the game console in 26
accordance with the quality-of-service 27
parameters determined from the game 28
selection by the gaming agent. 29
30
Claim 24 recites a method for providing enhanced quality-of service 31
to an online gaming user including the step of “selecting enhanced quality-32
of-service parameters from available quality-of-service parameters 33
determined by the gaming agent from the game selection without further 34
input from the online gaming user.” Claim 46 recites a system for providing 35
enhanced quality-of service to an online gaming user including a gaming 36
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agent server with instructions for the step of “selecting enhanced quality-of-1
service parameters from available quality-of-service parameters determined 2
by the gaming agent server from the game selection without further input 3
from the online gaming user.” Claim 56 recites a gaming agent server for 4
providing enhanced quality-of service to an online gaming user including a 5
memory bearing instructions adapted to enable the gaming agent server to 6
perform the step of “selecting enhanced quality-of-service parameters from a 7
database of quality-of-service parameters determined from the game 8
selection by the gaming agent server without further input from the online 9
gaming user.” Finally, Claim 57 recites a method for providing enhanced 10
quality-of service to an online gaming user including the step of “selecting 11
enhanced quality-of-service parameters from available quality-of-service 12
parameters determined by the gaming web server from the game selection 13
without further input from the online gaming user.” The determinative issue 14
in this appeal is whether Sen describes a method or system providing for 15
selection of enhanced quality-of-service parameters determined from a game 16
selection without further input from an online gaming user. (Reply Br. 3.) 17
Sen describes a simplified flowchart of an e-game login process in 18
Figure 2. The embodiment includes steps for a user selecting a game 40 and 19
the user entering participation rules 42. Sen further describes these steps in 20
paragraph [0018]: 21
In blocks 38 and 40, the local game server displays 22
a list of games available to the player and the 23
player selects a particular game. In response to the 24
player's game selection, the game server displays a 25
form or a series of questions designed to solicit the 26
player's participation rules. The participation rules 27
include the manner in which the player chooses to 28
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participate in the game (including, for example, 1
player, strategist or spectator) and the capabilities 2
of the player's computer. Thereafter, the game 3
server displays a game window to the player, as 4
shown in block 44, so that the player may begin to 5
participate in the game, as shown in block 46. The 6
user login process ends in block 48. 7
8
The Appellant correctly contends that the participation rules 42 9
include questions regarding the player’s computer capabilities and those 10
capabilities will “affect the QoS parameters available to the gaming 11
participant.” (Reply Br. 4.) “The QoS parameters cannot, therefore, be fully 12
determined until the player has provided the participation rules.” (Id.) 13
In paragraph [0020], Sen describes that the class of game can 14
influence the QoS: 15
The SIP [(Session Initiation Protocol)] can be 16
extended to support QoS [(quality of service)] 17
for different classes of games. For example, a 18
class of games (Class 1) may be characterized 19
by turn-based real-time game playing, such as 20
chess, checkers, and cards; a second class of 21
games (Class 2) may be characterized by real-22
time interactive games that preferably have 23
latency less than 50 milliseconds, for example; a 24
third class of games (Class 3) may be 25
characterized by real-time action/simulation/role 26
playing games where latency less than 50 27
milliseconds is required for optimal game play. 28
Still a fourth class (Class 4) may be 29
characterized by low-demand spectator and 30
strategists in a gaming session which is satisfied 31
by best efforts using available bandwidth. 32
33
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The Examiner incorrectly concludes from paragraph [0020] that 1
“different levels of games according to the level of QoS requirement[s] to 2
run the games and a list of already calculated classes . . . [results in a 3
situation where] selection of the game will automatically require a minimum 4
of requirements depending on the game.” (Ans. 7) (italics added). 5
The Appellant correctly contends that Sen is silent as to when the 6
class of game is determined. (Reply Br. 5.) The Appellant points out that “a 7
fair reading of Sen is that the class of the game is determined from the player 8
participation rules [42] and not from the selection of game [40].” (Id.) 9
(emphasis in original). In other words, Sen does not explicitly or inherently 10
describe matching the game selection to a set of quality-of-service 11
parameters determined by the gaming agent from the game selection without 12
further input from the online gaming user. 13
We do not sustain the rejections of independent claims 1, 24, 46, and 14
56-57 under § 102(a) as being anticipated by Sen. Consequently we do not 15
sustain the rejections of dependent claims 2-14, 16-19, 25, 28-40, 42-45, 47-16
55, 58, 61-73 and 75-78 under § 102(a) on the same ground. Without the 17
unsupported finding that Sen describes matching the game selection to a set 18
of quality-of-service parameters determined by the gaming agent from the 19
game selection without further input from the online gaming user, the 20
Examiner’s reasoning in support of the conclusion that the subject matter of 21
claims 15, 41 and 74 would have been obvious lacks rational underpinning. 22
We do not sustain the Examiner’s final decision rejecting claims 15, 41 and 23
74 under § 103(a) as being unpatentable over Sen. 24
Turning to the rejection of claims 26, 27, 59 and 60 under § 103(a) as 25
being unpatentable over Sen and PacketCable, Section 2.3 of PacketCable 26
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describes a QoS architecture on a network using either integrated services 1
based mechanisms or differentiated services mechanisms. The Examiner 2
does not point out how the teachings of PacketCable might have remedied 3
the deficiencies of Sen’s disclosure discussed in connection with the 4
rejections of the independent claims as anticipated by Sen. As such, we do 5
not sustain the Examiner’s final decision rejecting claims 26, 27, 59 and 60 6
under § 103(a) as being unpatentable over Sen and PacketCable. 7
8
DECISION 9
We REVERSE the Examiner’s decision rejecting claims 1-19 and 24-10
78. 11
We DISMISS the appeal as to claims 79-88. 12
No time period for taking any subsequent action in connection with 13
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 14
§ 1.136(a)(1) (2009). 15
16
REVERSED 17
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Klh 20
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