Ex Parte Hayashi et al

Patent Trial and Appeal Board

Nov 30, 2017

13287320 (P.T.A.B. Nov. 30, 2017)

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.
13/287,320 11/02/2011 Yugo HAYASHI SJP-723-3251 1070
27562 7590 12/04/2017
NIXON & VANDERHYE, P.C.
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
NGUYEN, VU
ART UNIT PAPER NUMBER
2619
NOTIFICATION DATE DELIVERY MODE
12/04/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YUGO HAYASHI AND KAZUYA SUMAKI
Appeal 2017-004508
Application 13/2 87,32c1
Technology Center 2600
Before ST. JOHN COURTENAY III, JAMES R. HUGHES, and
MONICA ULLAGADDI, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Examiner finally rejected claims 1—43. Appellants appeal
therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part.
1 The Real Party in Interest is Nintendo Co., Ltd. App. Br. 3.
Appeal 2017-004508
Application 13/287,320
Invention
This invention relates to “to computer-readable storage media,
information processing systems, and information processing methods. More
particularly, the exemplary embodiments relate to computer-readable storage
media, information processing systems, and information processing
methods, which enable, for example, processing based on an action of a
user.” (Spec. 11). Claim 1, reproduced below, is illustrative of the claimed
subject matter:
Illustrative Claim
1. A non-transitory computer-readable storage medium
comprising an information processing program executed on a
computer of an information processing apparatus which is
capable of displaying an image on a portable display device
which outputs at least attitude data based on an attitude of a body
of the portable display device, wherein the information
processing program causes the computer to:
obtain load data based on a load applied to a load detection
device;
control an attitude of an object arranged in a virtual world, by
changing the attitude of the object to correspond to changes in
the attitude of the body of the portable display device;
cause the object to move in the virtual world based on the load
data; and
display, on the portable display device, a first image showing the
virtual world viewed from a virtual camera having a position
and an attitude set to follow the attitude of the object, the
attitude of the object controlled based on the attitude data
corresponding to the changes in the attitude of the body of the
portable display device.
(Contested dispositive limitations emphasized in italics and bold).
App. Br. 26 (Claims Appendix).
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Application 13/287,320
Rejections
A. Claims 1—11, 15—20, 23—31, 34, and 36 are rejected on the ground of
nonstatutory obviousness-type double patenting (OTDP), as being
unpatentable over claims 1—31, 34, and 36, of copending Application
No. 13/283,032 (issued as US Pat. 9,561,443 on Feb, 7, 2017), in
view of Seo et al. (US 2007/0208528 Al; hereinafter “Seo”).2
B. Claims 1, 2, 11—20, 22—32, 34—37, and 43 are rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Rosenberg (US
2006/0262120 Al, pub. Nov. 23, 2006) and Satsukawa et al. (US
2008/0070686 Al, published Mar. 20, 2008) (hereinafter
“Satsukawa”).
C. Claims 3—10, 21, and 38—40 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Rosenberg, Satsukawa, and
Shimizu et al. (US 2003/0216176 Al, pub. Nov. 20, 2003)
(hereinafter “Shimizu”).
D. Claim 33 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Rosenberg, Satsukawa, and Abou-Samra et al. (US
6,416,410 Bl; hereinafter “Abou”).
E. Claims 41 and 42 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Rosenberg, Satsukawa, and “Virtual Camera
System” (hereinafter “Virtual”).
2 Although the Examiner made a provisional OTDP rejection, this rejection
is no longer provisional, because copending application 13/283,032 issued as
US Pat. 9,561,443, on February 7, 2017. (See Final Act. 5).
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Application 13/287,320
ANALYSIS
We have considered all of Appellants’ arguments and any evidence
presented. We highlight and address specific findings and arguments for
emphasis in our analysis below.
Non-statutory OTDP Rejection A
of Claims 1—11, 15—20, 23—31, 34, and 36
Regarding OTDP rejection A, “Appellants request that the double
patenting rejection be held in abeyance until all other matters have been
fully addressed on the merits.” (App. Br. 15).
Because Appellants advance no arguments on appeal traversing the
Examiner’s non-statutory OTDP rejection, we pro forma sustain the
Examiner’s provisional rejection A of claims 1—11, 15—20, 23—31, 34, and
36, on the ground of non-statutory obviousness-type double patenting. (See
Final Act. 4—9).
Rejection B of Claims 1, 2, 11—20, 22—32, 34—37, and 43
Issue: Under pre-AIA § 103(a), did the Examiner err in finding that
the cited Rosenberg and Satsukawa references, either alone or in
combination, would have taught or suggested the dispositive contested
limitations (shown in italics and bold):
display, on the portable display device, a first image showing the
virtual world viewed from a virtual camera having a position
and an attitude set to follow the attitude of the object, the
attitude of the object controlled based on the attitude data
corresponding to the changes in the attitude of the body of the
portable display device[,]
within the meaning of independent claim 1, and the commensurate contested
language of similar scope recited in remaining independent claims 34, 35,
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and 36? 3
In the Final Action, the Examiner finds the contested limitation of the
displayed view from a virtual camera having a position and an attitude
set to follow the attitude of the object is taught or suggested by Satsukawa:
Rosenberg does not explicitly teach, but Satsukawa teaches: a
first image showing the virtual world viewed from a virtual
camera having a position and an attitude set to follow the
attitude of the object (Satsukawa, Figs. 4 and 168, [0163],
"view point camera CM which is a virtual camera used as a view
point in the FPS game is attached to the head of the player's
character PC. The photographing direction of the view point
camera CM is fixed so that the photographing direction
coincides with the line-of-sight direction of the player's
character PC." In other words, the first image is created by the
virtual camera being positioned to follow the change in
orientation and/or direction of the character object.).
(Final Action 11) (emphases added).
Appellants disagree, and substantively traverse the Examiner’s
proffered combination of Rosenberg and Satsukawa:
Rosenberg explains that an avatar can be controlled using the
hand piece 108. However, even assuming for sake of argument
that Rosenberg indicates that the devices can be incorporated into
a single (e.g., portable) device, Rosenberg does not indicate that
the attitude (e.g., posture) of the virtual character will correspond
to the attitude of the device. At best, Rosenberg arguably changes
the moving direction based on the motion of the device, but does
not indicate that that attitude of an object will change to
correspond to the attitude of the allegedly corresponding
"portable display device." Nor would Rosenberg then control
the position and attitude of a virtual camera to correspond to
3 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 111 F.3d
1048, 1054 (Fed. Cir. 1997).
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the attitude of the character. Satsukawa does not cure these
deficiencies.
(App. Br. 16) (emphasis added).
Appellants further aver:
In the Final Rejection, the Examiner appears to assert that
Rosenberg’s alleged incorporation of all of the components into
a single, portable device in combination with Satsukawa tying
the movement of the virtual camera to the head position of the
player achieves such features. However, while Satsukawa
arguably sets the moving direction to correspond to the player's
movement, Satsukawa does not set the attitude of the virtual
camera to correspond to the attitude (e.g., posture) of the
player character.
Thus, the combination of Rosenberg and Satsukawa fails
to disclose or suggest the feature that the orientations of an object
and a virtual camera are controlled using the orientation of a
portable display device, while the object and the virtual camera
are moved based on an applied load. Furthermore, neither
reference teaches or suggests a configuration simultaneously
having both a configuration in which the orientations of an object
and a virtual camera are controlled using the orientation of a
portable display device, and a configuration in which an object
and a virtual camera are moved based on a load applied to a load
detection device (nor would there have been any motivation to
combine the references to arrive at such a configuration.
(App. Br. 17—18) (emphases added).
The Examiner disagrees. In the “Response to Arguments” section of
the Answer, the Examiner adopts a purported plain meaning claim
construction (without evidence in support) of the claim term “attitude.” In
particular, the Examiner “submits that [the] plain meaning of ‘attitude’ in
the context of the claim and without is any real world movement caused
by the user that affects the virtual world.” (Ans. 32).
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Regarding the contested limitations, the Examiner finds and further
explains:
Rosenberg-Satsukawa teaches viewpoint camera CM which is a
virtual camera used a view point attached to the head of the
player's character. Satsukawa, 11 [0163]. The photographing
direction of the viewpoint camera CM is fixed so that the
photographing direction coincides with the line-of-sight
direction of the player's character. Id. In other words, the first
image is created by the virtual camera under Rosenberg-
Satsukawa is positioned to follow the change in orientation
and/or direction of the character object.
(Ans. 33).
In the Reply Brief (2—3), Appellants respond to the Examiner’s
clarified claim construction of the claim term “attitude”:
In particular, one of ordinary skill, when reading the claims in
light of the specification, would understand that the recited
"attitude" corresponds to the orientation (or posture) of the
portable display device. For example, at least paragraph [0129]
of the specification explains that a "magnetic sensor 602 detects
the magnitude and direction of a magnetic field to detect an
orientation" and that "it is possible to calculate a change in the
attitude of the terminal device 6 because the orientation data
changes when the terminal device 6 moves" (emphasis added).
Thus, one of ordinary skill, when reading the claims in light of
the specification, would understand that the "attitude" is not
merely any real world movement of the device caused by the
user, but a specific orientation of a portable display device.
(emphasis added).
In light of the aforementioned claim construction, and regarding the
contested limitation, Appellants urge:
In the Answer, the Examiner appears to apply Satsukawa for the
alleged teaching of moving the virtual camera to correspond to
the attitude of the object. But, Satsukawa fails to describe such
features. Satsukawa describes moving the virtual camera based
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on how the user moves the lever on the controller (i.e., to mimic
a looking around action in a first person viewpoint). However,
Satsukawa does not move a virtual object based on the attitude
of the gun controller. At best, Satsukawa describes fixing the
virtual camera to the player character, but does not have the
player character's attitude correspond to the attitude of the
controller. Thus, even if combined with Rosenberg, the applied
combination does not set the attitude of a player character to the
attitude of the controller (or portable display).
(Reply Br. 3).
As recently emphasized by our reviewing court:
Even when giving claim terms their broadest reasonable
interpretation, the Board cannot construe the claims “so broadly
that its constructions are unreasonable under general claim
construction principles.” Microsoft Corp. v. Proxyconn, Inc.,
789 F.3d 1292, 1298 (Fed. Cir. 2015) (emphasis in original).
“[T]he protocol of giving claims their broadest reasonable
interpretation ... does not include giving claims a legally
incorrect interpretation” “divorced from the specification and
the record evidence.” Id. (citations and internal quotation marks
omitted); see PPC Broadband, Inc. v. Corning Optical
Commc'ns RI\LLC, 815 F.3d 747, 751-53 (Fed. Cir. 2016).
The correct inquiry in giving a claim term its broadest
reasonable interpretation in light of the specification is
not whether the specification proscribes or precludes some
broad reading of the claim term adopted by the examiner.
And it is not simply an interpretation that is not inconsistent
with the specification. It is an interpretation that
corresponds with what and how the inventor describes his
invention in the specification, i.e., an interpretation that
is “consistent with the specification.” In re Morris, 111
F.3d 1048, 1054 (Fed. Cir. 1997) (citation and internal
quotation marks omitted); see also In re Suitco Surface,
603 F.3d 1255, 1259-60 (Fed. Cir. 2010).
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In re Smith Int’l, Inc., No. 2016-2303, 2017 WL 4247407, at *5 (Fed. Cir.
Sept. 26, 2017).
Applying this guidance here, and in light of Appellants’ broad but
reasonable claim construction in light of the Specification, we are
constrained on this record to reverse the Examiner’s §103 rejection B of
each independent claim 1, 34, 35, and 36 on appeal. Turning to the
evidence, Satsukawa (1163) describes, in pertinent part:
A view point camera CM which is a virtual camera
used as a view point in the FPS game is attached to the head
of the player's character PC. The photographing direction of
the view point camera CM is fixed so that the photographing
direction coincides with the line-of-sight direction of the
player's character PC. The appearance of the view point
camera CM is shown in FIG. 4.
(emphases added).
Therefore, on this record, we find a preponderance of the evidence
supports Appellants’ contention: “At best, Satsukawa describes fixing the
virtual camera to the player character, but does not have the player
character’s attitude correspond to the attitude of the controller. Thus, even if
combined with Rosenberg, the applied combination does not set the attitude
of a player character to the attitude of the controller (or portable display).”
(Reply Br. 3).
Nor has the Examiner fully developed the record to show that “the
natural result flowing from the operation as taught would result in the
performance of the questioned function.” PAR Pharm., Inc. v TWI Pharms.,
Inc., 773 F.3d 1186, 1194—95 (Fed. Cir. 2014) (internal citation omitted).
For essentially the same reasons argued by Appellants in the Briefs, as
discussed above, we are persuaded the Examiner has not shown that the
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proffered combination of Rosenberg and Satsukawa teaches or suggests the
contested claim limitations:
display, on the portable display device, a first image showing the
virtual world viewed from a virtual camera having a position
and an attitude set to follow the attitude of the object, the
attitude of the object controlled based on the attitude data
corresponding to the changes in the attitude of the body of the
portable display device[,]
within the meaning of independent claim 1, and the similar contested
language of commensurate scope, as recited in each of remaining
independent claims 34, 35, and 36.
Accordingly, we are constrained on this record to reverse the
Examiner’s rejection B under pre-AIA § 103(a) of all claims rejected
thereunder.
Section 103 Rejections C, D, and E of the remaining dependent claims
In light of our reversal of §103 rejection B of independent claims 1,
34, 35, and 36, supra, we also reverse rejections C, D, and E of the
remaining claims which variously and ultimately depend therefrom. On this
record, the Examiner has not shown how the additionally cited secondary
references overcome the aforementioned deficiencies of the base
combination of Rosenberg and Satsukawa, as discussed above regarding
independent claim 1.
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DECISION
We affirm the Examiner’s non-statutory OTDP rejection of claims
1-11, 15-20, 23-31,34, and 36.
We reverse the Examiner’s rejections of claims 1—46 under pre-AIA
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED-IN-PART
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