Ex Parte Guinn et alDownload PDFPatent Trial and Appeal BoardDec 29, 201612968269 (P.T.A.B. Dec. 29, 2016) 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. 12/968,269 12/14/2010 Andrew C. Guinn 100.137US1 2052 65375 7590 BALLY (DELIZIO LAW) C/O DELIZIO LAW, PLLC 15201 MASON ROAD SUITE 1000-312 CYPRESS, TX 77433 EXAMINER MYHR, JUSTIN L ART UNIT PAPER NUMBER 3714 NOTIFICATION DATE DELIVERY MODE 01/03/2017 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): US PTO @ DELIZIOLAW.COM USPT02 @ DELIZIOLAW.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDREW C. GUINN, DAMON E. GURA, and JEREMY M. HORNIK Appeal 2014-003694 Application 12/968,269 Technology Center 3700 Before EDWARD A. BROWN, JAMES P. CALVE, and GEORGE R. HOSKINS, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Andrew C. Guinn et al. (Appellants)1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 2, 6—14, 23, and 25.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 WMS Gaming, Inc., is identified as the real party in interest. Appeal Br. 1. 2 Claims 3,5,15, and 24 are objected to as being dependent upon a rejected base claim, but indicated to contain allowable subject matter; and claims lb- 22 are allowed. Final Act. 12. Claim 4 is cancelled. Appeal Br. 14 (Claims App.). Appeal 2014-003694 Application 12/968,269 CLAIMED SUBJECT MATTER Appellants’ disclosure “relate[s] generally to wagering game systems, and more particularly to location-based customization of avatars in wagering game systems.” Spec. 13. The independent claims on appeal are 1, 13, and 23. Claim 1 is illustrative, and reads: 1. A computer-implemented method comprising: determining that a first wagering game session for a wagering game is initiated at a first facility, wherein the first facility is of a first type, wherein the wagering game comprises an avatar that is customizable according to a plurality of location- based customization options, and wherein the location-based customization options are based, at least in part, on the first facility being of the first type; configuring, by the wagering game server, the wagering game with a first set of customization options, associated with the first facility, for the avatar of the wagering game to be played on a first gaming machine associated with the first facility; determining, by the wagering game server, that a wagering game session for the wagering game is initiated at a second facility, wherein the second facility is of a second type; and configuring, by the wagering game server, the wagering game with a second set of customization options, associated with the second facility, for the avatar of the wagering game to be played on a second gaming machine associated with the second facility, wherein the second set of customization options is different than the first set of customization options, and wherein the second set of customization option [sic] is based, at least in part, on the second facility being of the second type. Appeal Br. 13 (Claims App.). REJECTIONS Claims 1, 2, 6—8, 13, 14, 23, and 25 are rejected under 35 U.S.C. § 103(a) as unpatentable over Blattner (US 7,484,176 B2, issued Jan. 27, 2009) and Fiden (US 2007/0259713 Al, published Nov. 8, 2007). 2 Appeal 2014-003694 Application 12/968,269 Claims 9—12 are rejected under 35 U.S.C. § 103(a) as unpatentable over Blattner, Fiden, and Martin (US 2007/0060330 Al, published March 15,2007). ANALYSIS Obviousness of claims 1, 2, 6—8, 13, 14, 23, and 25 over Blattner and Fiden Claims 1, 2, and 6—83 Claim 1 recites, inter alia, that “the location-based customization options are based, at least in part, on the first facility being of the first type,” and “the second set of customization option[s] is based, at least in part, on the second facility being of the second type.” Appeal Br. 13 (Claims App., emphases added). The Examiner finds that Blattner discloses these limitations. Final Act. 3^4 (citing Blattner, col. 1,1. 66—col. 2,1. 10, col. 7, 11. 22-44; Figs. 6, 7). The Examiner explains that Blattner teaches an instant messenger system where a user’s avatar is customized based on the user’s location. Id. at 3. The Examiner determines that Blattner does not teach that the computer method is for a gaming session on a game machine related to a gaming facility. Id. at 4. The Examiner relies on Fiden to teach these features. Id. at 4—5 (citing Fiden, Abstr.; || 8—9, 11—12, 44, 47, 52; Figs. 3, 7—8). The Examiner determines that it would have been obvious to combine the teachings Blattner with Fiden. Id. at 5. Appellants contend that Blattner and Fiden do not teach or suggest “customization options [] based, at least in part, on the facility being of the first type.” Appeal Br. 6. Appellants contend that “facilities can be a variety of types, such [as] brick-and-mortar casinos, online casinos, other facilities 3 Appellants group claims 1—3 and 5—8. Appeal Br. 6. Claims 3 and 5 are objected to and are not rejected. See Final Act. 12. 3 Appeal 2014-003694 Application 12/968,269 offering wagering games (e.g., wagering games at airports or bars), etc.,” and, “ [consequently, the customization options available for avatars are dependent on the type of facility in which the wagering game is being played.” Id. at 6—7. Appellants contend that “[b]y contrast, Blattner teaches modification of avatars based on geographic location, not a type of facility in which a person associated with the avatar is located.” Id. at 7. Claim 1 recites that “a first wagering game session for a wagering game is initiated at a first facility” and “a wagering game session for the wagering game is initiated at a second facility.” Appeal Br. 13 (Claims App., emphases added). Accordingly, a “facility” is the location where the wagering game session is initiated. This is consistent with the language of original claim 1, which recites “a first gaming location” and a “second gaming location.” Spec. 33. The Examiner points out correctly that Appellants do not define a “type of facility.” Ans. 6. In fact, a “facility” does not appear to be described in Appellants’ original disclosure. Claim 12 depends from claim 1 and recites that “the first type and the second type are one or more of a physical casino, online casino, virtual casino, and non-casino gaming establishment.” Appeal Br. 16 (Claims App.). These recited first and second “types” are similar to Appellants’ exemplary “types” of “facilities.” Appeal Br. 7. Appellants’ Specification describes “gaming locations.” See Spec. 118. The first and second “types” recited in claim 12 also appear to correspond to several “different gaming locations” described in Appellants’ Specification. See id.4 4 This is consistent with original and current claim 10, which depends from claim 1 and recites that “the first gaming location is a first physical casino 4 Appeal 2014-003694 Application 12/968,269 According to the doctrine of claim differentiation ‘“the presence of a dependent claim that adds a particular limitation raises a presumption that the limitation in question is not found in the independent claim.’” Bancorp Servs. L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1275 (Fed. Cir. 2012). Applying claim differentiation, specifying the “first type” and “second type” in claim 12 raises a presumption that these specific types of facilities are not required in claim 1—that is, “the first type” and the “second type” of “facility” in claim 1 may be, or may not be, “one or more of a physical casino, online casino, virtual casino, and non-casino gaming establishment” recited in claim 12. Otherwise, construing claim 1 to require the limitations of claim 12 would result in claim 12 not further limiting claim 1 and being indefinite. That is, claim 12 would fail to meet the requirements of either 35U.S.C. § 112, fourth paragraph, or second paragraph. The Examiner determines that a “type” of “facility” can be construed to encompass a type of location, which can be a geographic location, to allow customization of an avatar. Ans. 6. Blattner describes that the avatar appearance can be based on an “environmental condition” of a “geographic location,” or a “setting characteristic.” Blattner, col. 1,1. 60-col. 2,1. 3. Blattner describes that a setting characteristic may be associated with “a work setting, a recreation setting, a beach setting, a tropical setting, or a winter sport setting.” Id. at col. 2,11. 8—10. Blattner discloses that avatars can be animated to reflect the weather at the geographic locations of users, for example. Id. at col. 6,11. 41—43. and the second gaming location is a second physical casino.” See Spec. 36; Appeal Br. 16 (Claims App., emphasis added). 5 Appeal 2014-003694 Application 12/968,269 We note that paragraph 18 of the Specification describes that the “gaming locations” can be “different geographic locations (e.g., cities, states, countries, etc.) where players play wagering games remotely via the Internet.” See Spec. 118 (emphasis added). Construing a “type” of “facility” in claim 1 as a “gaming location,” as described at paragraph 18, and not limiting a “type” to the “types” recited in claim 12, a “type” of “facility” in claim 1 can be reasonably construed to encompass a geographic location. Appellants provide several “real-world examples,” which, purportedly, emphasize differences between Blattner and claim 1. Appeal Br. 7—9. These examples are based Blattner’s disclosure of customizing avatars based on a geographic location of a person associated with the avatar. In the Reply Brief, Appellants provide a “Geographic Location (“Beach Attire”) Example” and a “Weather Based on Geographic Location Example.” Reply Br. 5—6. Appellants’ examples are not persuasive, however, at least because they appear to be inconsistent with claim 1. For example, Appellants state, “[b]y contrast, according to Applicant’s claim 1, the avatar associated with the first player and the avatar associated with the second player could be customized with the same customization options. . . .” Appeal Br. 9 (emphasis added). However, claim 1 recites that “the second set of customization options is different than the first set of customization options.” Id. at 13 (Claims App., emphasis added). Appellants make similar inconsistent contentions for the “Weather Based on Geographic Location Example” in the Reply Brief. Reply Brief 5—6. 6 Appeal 2014-003694 Application 12/968,269 Moreover, Blattner provides additional disclosure regarding the animation of avatars that is not limited to geographic location. Blattner discloses, more generally, that “the avatar may reflect the location, activities, and other context of the user.” Blattner, col. 15,11. 29—30. Blattner also discloses that the sender avatar may have animation and appearance that reflects “place of the sender or aspects of the circumstances, objects or conditions of the sender.” Id. at col. 7,11. 23—27. Blattner describes dressing an avatar in working attire when a sender is working. Id. at col. 7, 11. 49-51. Blattner also describes dressing a sender located at the office in business attire. Id. at col. 27,11. 33—35. The avatar appearance of the office worker is based, at least in part, on the location (“facility”) being a workplace. Although such work setting is not a physical casino, online casino, or virtual casino, we do not construe claim 1 to be limited to these specific “types” of “facilities.” Appellants do not provide any persuasive argument as to why such work setting cannot be considered to be a “type” of “facility,” as claimed. See also id. at col. 2,11. 8—10 (other settings include a recreation setting, a beach setting, a tropical setting, or a winter sport setting). Further, we note that Blattner mentions a “virtual location,” again indicating that the animation customization of avatars is not limited to geographic location. Id. at col. 21,1. 9. Appellants contend that Fiden also does not teach or suggest the “facility-type dependent customization options” of claim 1. Appeal Br. 9. This contention is not persuasive, at least for the reason that we agree with the Examiner that Blattner teaches “facility-type dependent customization options.” In the Reply Brief, Appellants present additional arguments 7 Appeal 2014-003694 Application 12/968,269 pertaining to Fiden. Reply Br. 6—7. However, these arguments are untimely. 37 C.F.R. § 41.41(b)(2) states: Any argument raised in the reply brief which was not raised in the appeal brief, or is not responsive to an argument raised in the examiner’s answer, including any designated new ground of rejection, will not be considered by the Board for purposes of the present appeal, unless good cause is shown. (Emphasis added). Appellants do not show good cause for raising new arguments regarding Fiden in the Reply Brief. Thus, we do not consider the new arguments. For the above reasons, we sustain the rejection of claim 1, and claims 2 and 6—8 depending therefrom, as unpatentable over Blattner and Fiden. Claims 13 and 14s In the Appeal Brief, Appellants present similar arguments for patentability of claim 13 as those presented for claim 1. Appeal Br. 9—11.5 6 In the Reply Brief, Appellants rely on the same arguments made therein for claim 1 for patentability of claim 13. Reply Br. 7. Accordingly, Appellants’ contentions for claim 13 are unpersuasive for the reasons discussed above for claim 1. We sustain the rejection of claim 13, and claim 14 depending therefrom, as unpatentable over Blattner and Fiden. 5 Appellants group claims 13—15. Appeal Br. 9. Claim 15 is objected to and not rejected. 6 For the rejection of claim 13, Appellants explain that “a first gaming location” and “a second gaming location” correspond to “a first type of facility” and “a second type of facility,” respectively. Appeal Br. 10 (quoting Spec. 117). This is consistent with our construction of “type” of “facility” as recited in claim 1. 8 Appeal 2014-003694 Application 12/968,269 Claims 23 and 25 Appellants do not separately argue for patentability of claims 23 and 25. Accordingly, we sustain the rejection of these claims as unpatentable over Blattner and Fiden. Obviousness of claims 9—12 over Blattner, Fiden, and Martin Claims 9—12 each depend from claim 1. Appeal Br. 16 (Claims App.). Appellants contend that Martin does not cure the deficiencies of the rejection of claim 1. Id. at 11. As Appellants do not apprise us of any error in the rejection of claim 1, we sustain the rejection of claim 9—12 as unpatentable over Blattner, Fiden, and Martin. DECISION We AFFIRM the Examiner’s decision to reject claims 1, 2, 6—14, 23, and 25. No time period for taking any subsequent action in connection with this appeal maybe extended according to 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation