Ex Parte Jamison

Patent Trial and Appeal Board

Sep 29, 2016

12713858 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121713,858 02/26/2010
84649 7590 10/03/2016
Symbus Law Group, LLC
Cliff Hyra
11710 Plaza America Drive
Suite 2000
Reston, VA 20190
FIRST NAMED INVENTOR
John Paul Jamison
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
605.000 5525
EXAMINER
MATTEI, BRIAN DAVID
ART UNIT PAPER NUMBER
3633
NOTIFICATION DATE DELIVERY MODE
10/03/2016 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):
docketing@symbus.com
chyra@symbus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN PAUL JAMISON
Appeal2014-007840
Application 12/713,858
Technology Center 3600
Before JOSEPH A. FISCHETTI, CYNTHIA L. MURPHY, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MURPHY, Administrative Patent Judge.
DECISION ON APPEAL
The Appellant (John Paul Jamison) appeals under 35 U.S.C. § 134
from the Examiner's rejection of claims 32-57. 1 We have jurisdiction over
this appeal under 35 U.S.C. § 6(b).
We AFFIRM IN PART.
1 Claims 1-17, 19, and 22-31 have been cancelled; claims 18, 20, and 21
have been allowed. (See Appeal Br. 5.)
Appeal2014-007840
Application 12/713,858
STATEMENT OF THE CASE
The Appellant's invention "relates to sporting fields, arenas, stadiums,
theaters, and raceways." (Spec. 1.)
Illustrative Claim2
32. A stadium structure, comprising:
plural distinct areas for holding events to be viewed by spectators,
one or more areas for spectators to view events, and
a surrounding structure enclosing the areas for holding events and
areas for spectators to view events,
wherein multiple events to be viewed by spectators can be held
simultaneously,
wherein one of the areas for spectators to view events comprises a
unifying structure located between a first set of two or more of the areas for
holding events,
wherein the unifying structure is configured such that spectators in the
unifying structure have a direct view of events being held simultaneously in
the first set of two or more areas for holding events from a single position.
Stewart
Hlavin
Kum er
Nakfoor
Indy Stadium Structure
Photograph
Indy Pagoda
Photographs
Indy Fence
Photographs
Evidence
us 4,982,930
us 5,186,119
US 6,591,554 B2
US 2005/0021364 Al
Jan. 8, 1991
Feb. 16, 1993
July 15, 2003
Jan.27,2005
Indianapolis Motor Speedway Website,
http://seats3d.com/racetracks/indianapolis_motor_spe
edway/1
Flickr
https://www.flickr.com/photos/casadeyork/57742733
72
Wikipedia; Indianapolis Motor Speedway
https://upload. wikimedia.org/wikipedia/ commons/ d/ _
2 This illustrative claim is quoted from the Claims Appendix ("Claims
App.") accompanying the Appeal Brief.
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Application 12/713,858
Indy Walkway
Photograph
Indy Mounds
Photograph
Indy Hotel
Information
CN Tower
Article
Scissors Lift
Photograph
Laguna Track Map
3-on-3 Basketball
Registration
Wikipedia; Indianapolis Motor Speedway
https ://upload. wikimedia. org/wikipedia/ commons/ d/ d
9 /Indianapolis_Motor_Speedway _
Indianapolis Motor Speedway Website,
http://seats3d.com/racetracks/indianapolis_motor_spe
edway/1/#/pg_gallery_8/
Internet Archive; Way Back Machine
https://web.archive.org/web/20130304063059/
Internet Archive; Way Back Machine,
CanadaCool
https://web.archive.org/web/20070426100504
Paul Steinbach, Fatal Scissor Lift Accident
http://www.athleticbusiness.com
Way Back Machine, Laguna Track Map: map
of tracks at Mazda Raceway
https://web.archive.org/web/20080517025625
Gus Macker Tournament Registration
http://www.macker.com/macker-toumament/2014-
gus-macker-tour/262-morris-il.html
Rejectzons
I. The Examiner rejects claims 40, 41, 43, 46, and 47 under
35 U.S.C. § 112, first paragraph, as failing to comply with the enablement
requirement. (Non-Final Action 4.)
II. The Examiner rejects claims 32, 33, 36-38, and 45 under
35 U.S.C. § 102(b) as anticipated by the stadium structure shown in the Indy
Photograph ("Indy Stadium Structure"). (Id. at 6.)
III. The Examiner rejects claims 39, 42, 51, 53, and 54 under
35 U.S.C. § 103(a) as unpatentable over the Indy Stadium Structure. (Id.
at 8.)
IV. The Examiner rejects claim 34 under 35 U.S.C. § 103(a) as
unpatentable over the Indy Stadium Structure and Nakfoor. (Id. at 10.)
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Application 12/713,858
V. The Examiner rejects claims 35, 41, 46, and 47 under 35 U.S.C.
§ 103(a) as unpatentable over the Indy Stadium Structure and Kumer. (Id.)
VI. The Examiner rejects claim 43 under 35 U.S.C. § 103(a) as
unpatentable over the Indy Stadium Structure and Stewart. (Id. at 12.)
VII. The Examiner rejects claim 44 under 35 U.S.C. § 103(a) as
unpatentable over the Indy Stadium Structure and Hlavin. (Id. at 13.)
VIII. The Examiner rejects claims 48-50 under 35 U.S.C. § 103(a) as
unpatentable over the Indy Stadium Structure and CN Tower. (Id.)
IX. The Examiner rejects claim 55 under 35 U.S.C. § 103(a) as
unpatentable over the Indy Stadium Structure and Kumer. (Id. at 14.)
X. The Examiner rejects claim 52 under 35 U.S.C. § 103(a) as
unpatentable over the Indy Stadium Structure, Nakfoor, and Kumer. (Id.
at 14.)
XI. The Examiner rejects claim 56 under 35 U.S.C. § 103(a) as
unpatentable over the Indy Stadium Structure; Kumer; and Laguna. (Id.
at 16.)
XII. The Examiner rejects claim 57 under 35 U.S.C. § 103(a) as
unpatentable over the Indy Stadium Structure, Kumer, Laguna, and Nakfoor.
(Id. at 17.)
ANALYSIS
Claims 32 and 52 are the independent claims on appeal, with the rest of
the claims on appeal depending therefrom. (See Claims App.) Independent
claims 32 and 52 each recite "[a] stadium structure" comprising event-holding
areas ("plural distinct areas for holding events to be viewed by spectators"),
spectator-viewing areas ("one or more areas for spectators to view events")
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Application 12/713,858
and a "unifying structure" configured so that spectators "have a direct view of
events being held simultaneously." (Id.)
Rejection I
Dependent claim 40 requires a spectator-viewing area to comprise
"hinged bleachers that can rotated on their hinges." (Claims App.)
Dependent claim 41 requires "bleachers [that] can be folded into the
ground," dependent claims 46 and 47 similarly require "seating [that] can be
folded to the ground." (Id.) Dependent claim 43 requires "[a] concrete pad
[that] can be raised or lowered to create a predetermined incline." (Id.) The
Examiner determines that the Specification does not contain "details that one
of ordinary skill in the art would need to know in order to construct [the
claimed bleachers, seating, and/or concrete pad]. (Non-Final Action 4--5.)
According to the Examiner the Appellant does not provide "support" in the
Specification "to actually show how the device works." (Id. at 5.)
The Appellant argues that the Examiner does not adequately establish
that one of ordinary skill in the art could not make or use the invention from
the Appellant's disclosure without undue experimentation. (See Appeal
Br. 10.) We are persuaded by this argument because the Examiner's findings
establish, at most, that some experimentation may be necessary in order for
one of ordinary skill in the art to resolve certain design issues such as seat-to-
seat interference, locking of folded seats, bleacher stability, folded-seat
geometry, and/or folding-hinge mechanics. (See Non-Final Action 4--5; see
also Answer 4--5.) "Enablement is not precluded by the necessity for some
. . " 1. I.fl d Q"8 F' 0 d ,...31 ""'i6 i7 (f' l ('" 1988) expenmentat10n. n re rr an .s, (..)_ . ._ .. L., • ! _ , / _ ----~ , ec;. .Ar. _ .
And the Examiner does not provide adequate findings with respect to the
Hi ands factors to establish the necessity for undue experimentation.
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Application 12/713,858
Thus, we do not sustain the Examiner's rejection of claims 40, 41, 43,
46, and 47 under 35 U.S.C. § 112, first paragraph.
Rejection II
Independent claim 32 recites, in addition to the event-holding areas,
the spectator-viewing areas, the unifying structure mentioned above, a
"surrounding structure" enclosing the event-holding areas and the spectator-
viewing areas. (Id.) The Examiner determines that the Indy Stadium
Structure comprises event-holding areas (racetrack, golf course), spectator-
viewing areas (bleachers), a surrounding structure (fence), and a unifying
structure (pagoda) as required by independent claim 32. (See Non-Final
Action 6.)
The Appellant argues that the Indy Stadium Structure Photograph
does not show all of the elements recited in independent claim 32. (See
Appeal Br. 11-12.) We are not persuaded by this argument because the
Examiner provides detailed evidence that the photographed Indy Stadium
Structure includes the elements recited in claims independent 32. (See e.g.,
Indy Pagoda Photographs, Indy Fence Photographs; see also Answer 5.)
Thus, we sustain the Examiner's rejection of independent claim 32
under 35 U.S.C. § 102(b). The Appellant does not argue dependent claim
36-38 separately (see Appeal Br. 13), so they fall with independent
claim 32. Thus, we also sustain the Examiner's rejection of dependent
claims 36-38 under 35 U.S.C. § 102(b).
Dependent claim 33 requires the event-holding areas and the
spectator-viewing areas to be "aligned so that there is no space between
them." (Claims App.) The Appellant argues that "there appears to be quite
a lot of empty space" between the racetrack, the golf course, and the
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spectator areas in the stadium structure shown in the Indy Stadium Structure
Photograph. (Appeal Br. 13.) We are not persuaded by this argument
because the Examiner provides photographic evidence of the claimed
alignment. (See Indy Stadium Structure Photograph; see also Answer 6.)
Thus, we sustain the Examiner's rejection of dependent claim 33 under
35 U.S.C. § 102(b).
Dependent claim 45 requires (via its dependence on claim 36) one of
the event-holding areas to be a racetrack and further requires that this
racetrack be "substantially rectangular." (Claims App.) The Appellant
argues that the Indy racetrack has rounded comers and thus is not
rectangular. (See Appeal Br. 13.) We are not persuaded by this argument
because the Examiner provides evidence that it is reasonable to describe an
"oval track" as a "rectangular shaped" racetrack. (See Indy Hotel
Information; see also Answer 6. )3
Thus, we sustain the Examiner's rejection of dependent claim 45
under 35 U.S.C. § 102(b).
Rejection III
Dependent claims 39, 42, 51, 53, and 54 recite additional features of
the stadium structure, such as "walkways," a "concrete pad," a
"transportable" tower, and/or "rectangular fields." (Claims App.) The
3 Although the Appellant points to illustrated embodiments in the
Specification (see Appeal Br. 13), the Appellant does not contend that the
claim term in question is limited to such illustrated embodiments. And we
are cautious about not "reading limitations into a claim from the preferred
embodiment described in the specification, even if it is the only embodiment
described, absent clear disclaimer in the specification." In re Am. A cad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004).
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Examiner finds that the stadium structure shown in Indy possess these
claimed features or, if not, it would been obvious provide this prior art
stadium structure with them. (See Non-Final Action 7-10.)
The Appellant argues that the Examiner's determination of
obviousness is based on Official Notice or otherwise improper. (See Appeal
Br. 13-18.) We are not persuaded by this argument because the Examiner
provides evidence that walkways, concrete pads, transportable towers, and
events held in parking lots are familiar elements. (See e.g., Indy Walkway
Photograph, Indy Stadium Structure Photograph, Scissor Lift Photograph,
and 3-on-3 Basketball Registration; see also Answer 6-7.) And "[a]
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results." KSR Int 'l Co.
v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Thus, we sustain the Examiner's rejection of dependent claims 39, 42,
51; 53; and 54 under 35 U.S.C. § 103(a).
Rejection IV
Dependent claim 34 recites additional features of the stadium
structure, specifically "electronic ticket gates" located "at the intersection
of' two or more spectator-viewing areas. (Claims App.) The Examiner
determines that it would have been obvious, in view of the teachings of
Nakfoor, to locate electronic ticket gates "in the intersections between
seating areas" in the Indy Stadium Structure "in order to ensure that the
viewers that are seated in each of the seating areas has a corresponding
ticket." (Non-Final Action 10-11.)
The Appellant argues that Nakfoor "teaches electronic ticket gates"
but does not suggest "locating electronic ticket gates at the intersection
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between plural distinct spectator areas." (Appeal Br. 18.) We are not
persuaded by this argument because N akfoor teaches the need "for
verification of access to an area or feature at an event or venue." (Nakfoor
i-f 7.) The Appellant does not point, with particularity, to flaws in the
Examiner's reasoning that one of ordinary skill in the art would appreciate
that there would be a need in the Indy Stadium Structure to verify access to a
particular spectator-viewing area as opposed to an adjacent (and perhaps
more expensive) spectator-viewing area. "[A]ny need or problem known in
the field of endeavor at the time of invention" can "provide a reason for
combining the elements in the manner claimed." KSR at 419--420.
Thus, we sustain the Examiner's rejection of dependent claim 34
under 35 U.S.C. § 103(a).
Rejection V
Dependent claims 35, 41, 46, and 47 recite "transformable bleachers"
and foldable "spectator seating." (Claims App.) The Examiner finds that it
would have been obvious, in view of Kumer, to provide the prior art stadium
structure with such bleachers or seating. (See Non-Final Action 11.) The
Appellant argues that Kumer "does not teach bleachers, only seats" and/or
that "[t]here would be no reason to make the modification." (Appeal
Br. 20.) We are not persuaded by these arguments because we agree with
the Examiner that "multiple rows of seats" can be considered "bleachers."
(Answer 9.) Also, Kumer teaches that its foldable chairs can selectively
provide "open space" or "readily available seating" in an auditorium.
(Kumer, col. 4, lines 44--50.) The Appellant does not adequately address
why one of ordinary skill in the art would not consider this as a reason for
the Examiner's proposed modification. Again, "any need or problem known
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in the field of endeavor at the time of invention and addressed by the patent
can provide a reason for combining the elements in the manner claimed."
KSR at 419-20.
Thus, we sustain the Examiner's rejection of dependent claims 35, 41,
46, and 47 under 35 U.S.C. § 103(a).
Rejections VI and VII
Dependent claims 43 and 44 depend from claim 42 which requires
one or more of the event-holding areas to comprise "a concrete pad."
(Claims App.) As discussed above, we are not persuaded by the Appellant's
position that a concrete block in the Indy Stadium Structure would not have
been obvious. As such, we are not persuaded by the Appellant's argument
that the additional prior art references introduced in these rejections (i.e.,
Stewart, Hlavin) do not teach or suggest the use of a concrete pad in a prior
art stadium structure (see Appeal Br. 21 ), as the Examiner relies upon the
Indy Stadium Structure for this feature.
Thus, we sustain the Examiner's rejections of dependent claims 43
and 44 under 35 U.S.C. § 103(a).
Rejection VIII
Dependent claims 48-50 recite further features of the unifying
structure, such as an "elevated" seating area, a "transparent" floor, and being
"rotatable." (Claims App.) The Examiner finds that these features are
apparent in the Indy Stadium Structure and/or the structure shown in the CN
Tower Article. (See Non-Final Action 13-14.) The Appellant argues that
the CN Tower is "nonanalogous art and should be withdrawn as a
reference." (Appeal Br. 22.) We are not persuaded by this argument
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because a particular problem faced by the inventor related to the ability of
the spectators "to watch multiple live sporting events at once." (Spec. 2.)
The CN Tower Article discusses the "spectacular views" afforded by the
tower's elevated restaurant (e.g., seating), glass floor, and rotating structure.
(See CN Tower Article.) As such, the CN Tower "is reasonably pertinent to
the particular problem with which the inventor is involved" and therefore
analogous art. In re Bigio, 381F.3d1320, 1325 (Fed. Cir. 2004)
The Appellant also argues that there would be no reason to modify the
Indy Stadium Structure to have a transparent floor and/or to be rotatable as
its unifying structure is not intended for spectator viewing. (See Appeal
Br. 22-23.) We are not persuaded by this argument because the Examiner
provides evidence of "spectators watching from the pagoda." (See Indy
Pagoda Photographs; see also Answer 10.)
Thus, we sustain the Examiner's rejection of dependent claims 48-50
under 35 U.S.C. § 103(a).
Rejection IX
Dependent claim 55 depends from independent claim 32 and, akin to
dependent claims 35, 41, 46, and 47 discussed above, recites "transformable
seating." (Claims App.) The Examiner determines that it would have been
obvious, in view of the teachings of Kumer, to provide inner spectator areas
in the Indy Stadium Structure with transformable seating. (See Non-Final
Action 14--15.) The Appellant argues that "it is unclear how such a
combination might be accomplished or what the end result might be."
(Appeal Br. 23.) We are not persuaded by this argument because the
Examiner provides evidence of where foldable chairs (i.e., transformable
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seating) could be placed at golf courses associated with the Indy Stadium
Structure. (See Indy Golf Courses Photograph; see also Answer 10.)
Thus, we sustain the Examiner's rejection of dependent claim 55
under 35 U.S.C. § 103(a).
RejectionX
Independent claim 52, like independent claim 32, recites limitations
relating to event-holding areas, spectator-viewing areas, and a unifying
structure. (Claims App.) Independent claim 52 also recites limitations (i.e.,
electronic ticket gates and movable bleachers) akin to those discussed above
in connection with dependent claims 34, 35, 41, 46, and 47. (Id.) The
Appellant repeats or refers to the argument made above (see Appeal Br. 24)
and, for the same reasons discussed above, we are not persuaded by these
arguments.
Thus, we sustain the Examiner's rejection of independent claim 52
under 35 U.S.C. § 103(a).
Rejection XI
Dependent claim 56 requires "inner spectator" seating areas to be
"connected by one or more bridge structures." (Claims App.) The
Examiner finds it would have been obvious to modify the Indy Stadium
Structure "by including a pedestrian bridge over the road course track as
taught by Laguna, in order for the spectators to access the seating areas
before, during and after races. (Non-Final Action 16-17.)
The Appellant argues that Laguna does not "teach bridge structures
connecting inner spectator areas" and the Indy Stadium Structure has "inner
spectator areas inside the racetrack, not on both sides of the race track."
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(Appeal Br. 25.) We are not persuaded by this argument because the
Examiner provides evidence that the Indy Stadium Structure has mounds
located on each side of a race track (see Indy Mounds Photograph) and
explains why they can be considered inner spectator areas (see Answer 11 ).
And the Appellant does not adequately address why Laguna does not teach
placing a pedestrian bridge over this race track.
Thus, we sustain the Examiner's rejection of dependent claim 56
under 35 U.S.C. § 103(a).
Rejection XII
Dependent claim 57 requires "ticket gates [to] control travel across"
the bridge structure(s) connecting inner spectator areas. (Claims App.) The
Appellant argues that Nakfoor does not "teach or suggest placing ticket gates
on bridge structures between spectator areas." (Appeal Br. 25-26.) We are
not persuaded by this argument because it does not address the Examiner's
combination of the prior art. As discussed above, the Examiner finds that it
would have been obvious to provide the Indy Stadium Structure with a
pedestrian bridge "in order for the spectators to access [] seating areas" to
view an event. (Non-Final Action 16-17.) And as also discussed above,
Nakfoor teaches the need "for verification of access to an area or feature at
an event or venue." (Nakfoor i-f 7.)
Thus, we sustain the Examiner's rejection of dependent claim 57
under 35 U.S.C. § 103(a).
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DECISION
We REVERSE the Examiner's rejection of claims 40, 41, 43, 46,
and 47 under 35 U.S.C. § 112, first paragraph.
We AFFIRM the Examiner's rejections of claims 32-39 and 41-57
under 35 U.S.C. § 102(b) and§ 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).
AFFIRMED-IN-PART
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