Ex Parte Larsen et al

Patent Trial and Appeal Board

Dec 7, 2016

12113128 (P.T.A.B. Dec. 7, 2016)

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.
12/113,128 04/30/2008 Joshua D. Larsen 110384.64001 1434
66880 7590 12/09/2016
Seed IP Law Group LLP/Scientific Games
701 FIFTH AVENUE
SUITE 5400
SEATTLE, WA 98104
EXAMINER
WEATHERFORD, SYVILA
ART UNIT PAPER NUMBER
3717
NOTIFICATION DATE DELIVERY MODE
12/09/2016 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):
Marv.Hein @ scientificgames.com
patentinfo @ seedip. com
Jacques@seedip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSHUA D. LARSEN, CHRISTOPHER D. BARTON,
NATHAN K. HARVEY, and METTU R. REDDY
Appeal 2015-001455
Application 12/113,128
Technology Center 3700
Before BENJAMIN D. M.WOOD, WILLIAM A. CAPP, and
AMANDA F. WIEKER, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134 of the final
rejection of claims 1—20 as unpatentable under 35 U.S.C. § 103(a) over Lee
(US 2006/0160622 Al, pub. July 20, 2006) and Choi (US 2007/0094694 Al,
pub. Apr. 26, 2007).1,2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Examiner also provisionally rejected claims 1—10 on the ground of
non-statutory obviousness-type double patenting over claims 1—10 of co­
pending Application No. 12/113,134. Non-Final Action 2—3. We do not
reach this rejection. See Ex parte Moncla, 95 U.S.P.Q.2d 1884 (BPAI 2010)
(precedential).
2 This appeal is related to Appeal No. 2015-001475, which is an appeal of
Non-Provisional Application No. 12/113,134.
Appeal 2015-001455
Application 12/113,128
THE INVENTION
Appellants’ invention relates to gaming machines. Spec. 11.
Claim 1, reproduced below with disputed claim language highlighted, is
illustrative of the subject matter on appeal.
1. A method for downloading gaming related data from a
server to a gaming machine, the method comprising:
enabling download of gaming related data to a gaming
machine in a background operation while a gaming application
on the gaming machine is available for use;
enabling variation in configurable download speed of the
gaming related data in response to game events when
downloading in the background operation, wherein there are
more than one configurable download speeds, wherein a fastest
configurable download speed is employed when a gaming
machine is idle, and wherein a slowest configurable download
speed is employed, in anticipation of game play commencing,
when there is a money transaction inputting money into the
gaming machine;
identifying game events that are used to determine
configurable download speed;
establishing the configurable download speed based on the
identified game events; and
downloading gaming related data to a gaming machine in a
background operation while a gaming application on the
gaming machine is available for use at the established
configurable download speed.
OPINION
Appellants argue claims 1—20 as a group.3 Appeal Br. 4—7. We select
claim 1 as representative. See 37 C.F.R. § 41.37(c)(l)(iv) (2015).
The Examiner finds that Lee discloses all of the elements of claim 1
except for the limitations directed to varying the download speed in response
3 Claim 21 is withdrawn. Appeal Br. 3.
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Appeal 2015-001455
Application 12/113,128
to game events when downloading in the background operation. Non-Final
Action 5. The Examiner relies on Choi as disclosing dynamic control of
download speed. Id. at 5—6. According to the Examiner:
Teachings of Choi also suggest that Lee can identify certain
events as requiring more resources that others and therefore Lee
can set a download speed once its monitor see[s] that event start
(or anticipate gaming machine needs). Such changes to Lee
would make the download operation transparent to the user of
the gaming machine.
Id. at 6.
Appellants traverse the Examiner’s rejection by arguing that the prior
art does not teach or suggest slowing the download speed when there is
money in the gaming machine. Appeal Br. 5. Appellants characterize the
act of depositing money in the gaming machine as triggering an anticipation
that system resource usage will increase imminently. Id. According to
Appellants, their claimed system is “not surprised” by a rapid increase in
system resource usage. Id.
Appellants attempt to distinguish Choi by arguing that Choi
dynamically sets download speed based on what type of application is
currently operating, not what type of application is going to be operating in
the future. Id. at 6—7. According to Appellants, “Choi in particular is
limited to what can be done during game play, not in anticipation thereof.”
Id. at 7.
In response, the Examiner states that Choi determines the download
speed according to the type of application operating on a device and altering
the download speed accordingly. Ans. 5. The Examiner observes that one
of the applications that may be used to determine the download speed is
playing a game. Id. (citing Choi Tflf 8, 49). The Examiner states that Choi is
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Application 12/113,128
a secondary reference that is used to modify Lee, which teaches coin
operated gaming devices. Id. The Examiner reasons and further states that
it is well-known that insertion of money into a coin-operated gaming device
starts the play of a game on that gaming device. Id. Therefore, according to
the Examiner, insertion of money into the gaming device can indicate the
start of playing a game such that insertion of money can be used as the type
of application determining the download speed. Id.
The Examiner further responds to Appellants’ argument that Choi
only monitors current applications and, therefore, does not anticipate what
type of application is going to be operating in the future. Id. at 6. The
Examiner states that Appellants’ position is predicated on the assumption
that insertion of money into a gaming device is an act that is separate and
apart from playing a game on the gaming device. Id. The Examiner takes
the position that, in view of Choi, insertion of money can be set in advance
as the indication of the type of application that will be used to alter the
download speed. Id.
In reply, Appellants challenge the Examiner’s statement that it is
well-known that insertion of money into coin operated gaming devices starts
the play of a game. Reply Br. 2. According to Appellants, gaming
machines do not begin to operate upon insertion of money, rather, they begin
upon pressing a button, such as “spin” or “deal,” after a wager has been
made. Id. Appellants argue that making a wager is a separate event from
inserting money into a machine. Id. at 3. Appellants argue a gaming
machine accounts for money that is input into the gaming machine, for
example, by crediting a credit meter, but asserts that “the gaming machine
remains idle until a game has been activated and is in operation or running.”
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Application 12/113,128
Id. at 2—3. Appellants reiterate the argument from their Appeal Brief that
Choi determines download speed according to the application that is
currently running, which Appellants distinguish from varying download
speed “in anticipation of game play commencing when there is a money
transaction inputting money into the gaming machine,” as recited in claim 1.
Id. at 3.
Lee discloses a gaming system that includes a coin/credit detector 340
that monitors receipt of payment for game play through coins, bills,
cash-value cards, or credit cards. Lee 44, 45. Lee discloses that software
can be downloaded to a gaming device 430 in a background operation while
an application, such as a gaming application, runs in the foreground on the
gaming device. Id. Tffl 47, 57.
Choi discloses a method of controlling the download speed of a
broadcast receiving device. Choi, Abstract. In the embodiment disclosed in
Figure 6, at steps S220 and S230, download is performed at a controlled
download speed. Id. 1 68, Fig. 6.
the download speed is dynamically increased or decreased
according to the processing resources consumed in operating
the application. As described above, the download speed is
decreased or set as “0” (i.e. stopped downloading data) as the
processing resources consumption of the broadcast receiving
device 100 increases. If the processing-resource consumption
of the broadcast receiving device 100 decreases, the download
speed may be increased. At this time, the stopped download
may be restarted.
Id. 170. Choi further explains that information on the type of application
that triggers a certain download speed may be set in advance and the system
may decrease the download speed if the set application is operated.
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Application 12/113,128
As another exemplary embodiment for controlling the
download speed, when the monitoring module 220 monitors
what type of application is operating, the control module 230
may lower the download speed to less than a certain level or
stop the download if a predetermined type of application is
operating. A number of processing resources are needed to
play a moving picture or a game, so the download speed may be
set as “0” when the application for playing a moving picture or
a game is operating. Information on the type of application
may be set in advance, thereby decreasing the download speed
if the set application is operated. The information may be
stored in the storage module 240.
Id. 1 58 (emphasis added).
The Examiner’s proposed combination of Lee and Choi discloses a
gaming device that receives money and then dynamically sets a download
speed for downloading that occurs in the background while gaming takes
place in the foreground. See Lee 44, 45, 47, 57; Choi Tflf 68, 70. As
taught by Choi, information on the type of application that triggers a reduced
download speed may be “set in advance,” thereby anticipating future system
resource usage. Choi 1 58; Non-Linal Action 6. In such a combination, the
input of money, as taught by Lee, may be identified as the type of
application that triggers a reduced download speed, as taught by Choi.
Appellants’ point that Choi slows the download speed in response to
an application that is currently running instead of anticipating a future event
is well-taken. Moreover, we do not necessarily agree with the Examiner that
inputting money “starts” the game, as such a construction reads “in
anticipation of game play commencing’'' out of the claim. That does not
mean, however, that the Examiner erred in rejecting the claim. The
Examiner’s rejection reasons that the teachings of Choi suggest that Lee can
identify certain events as requiring more resources and, therefore, can set a
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Application 12/113,128
download speed upon the start of an event or in anticipation of the start of an
event. Non-Final Action 6.
Choi varies download speed based on the occurrence of an event,
which may be identified in advance. Choi 1 58. Assuming, for sake of
argument, that there is distinction between putting money into a machine
and starting a game on the machine as two separate and identifiable
“events,” Appellants do not explain or provide evidence as to why the
selection of one event (money input) opposed to the other (game
commencement) rises to the level of patentable invention.
When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this
leads to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense. In that
instance the fact that a combination was obvious to try might
show that it was obvious under § 103.
KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
In the instant case, the sole aspect of Appellants’ invention that is
relied on for patentability over Lee and Choi is slowing the download speed
upon the event of putting money into the gaming machine. We are not
persuaded that such rises to the level of a patentable invention. The input of
money is one of only a finite number of identifiable events that occur
between a gaming machine being idle and the commencement of game play
and an accompanying increase in system resource usage. Moreover, it is
reasonably foreseeable that commencement of game play is likely to follow
soon after putting money into the machine. In our opinion, merely
triggering the slowing of download speed upon the event of putting money
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Application 12/113,128
into the gaming machine is the product not of invention, but of ordinary skill
and common sense. Id.
In view of the foregoing discussion, we determine the Examiner’s
findings of fact are supported by a preponderance of the evidence and that
the Examiner’s legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner’s unpatentability rejection of
claims 1—20.
DECISION
The decision of the Examiner to reject claims 1—20 is affirmed.
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
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