Ex Parte Larsen et al

Patent Trial and Appeal Board

Dec 7, 2016

12113134 (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.
12/113,134 04/30/2008 Joshua D. Larsen 110384.640 1443
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 2015-001475
Application 12/113,134
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—21 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) and the rejection of claim 21 over Lee, Choi, and Jhang
(US 2007/0233750 Al, pub. Oct. 4, 2007). We have jurisdiction under
35 U.S.C. § 6(b).1
We AFFIRM.
1 This appeal is related to Appeal No. 2015-001455, which is an appeal of
Non-Provisional Application No. 12/113,128.
Appeal 2015-001475
Application 12/113,134
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 system for downloading gaming related data in a
casino gaming environment, from a server to a gaming
machine, the system comprising:
a server interconnected to a gaming network;
one or more gaming machines connected to the server via
the gaming network, wherein each gaming machine includes a
buffer, RAM, storage media, and a gaming processor; and
a download throttling system, wherein the download
throttling system enables 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;
wherein the download throttling system enables 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 that inputs money into the gaming machine or
money remains in the gaming machine;
wherein the download throttling system identifies game
events that are used to determine configurable download speed,
wherein the download throttling system establishes the
configurable download speed based on the identified game
events; and
wherein the download throttling system manages the
downloading of 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.
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Application 12/113,134
OPINION
Unpatentability of Claims 1—21
over Lee and Choi
Claims 1—20
Appellants argue claims 1—20 as a group. 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 buffering and variation in configurable
download speed depending on whether the machine is idle or money is input
into the machine. Non-Final Action 2—A. The Examiner finds that Lee
teaches tangible machine-readable media for receiving game content. Id.
at 4. The Examiner finds that a buffer is commonly known to be holding
section of memory, temporarily holding in-coming and out-going data. Id.
The Examiner relies on Choi as disclosing dynamic control of download
speed. Id. at 4—5 (citing Choi 10, 54, 58, Figs. 4A-4B). According to the
Examiner:
It would have been obvious to a person of ordinary skill in the
art at the time of the invention to modify Lee as using a buffer
in moving data from the network to its storage area, since it is a
common practice. Also, to modify Lee with the teachings of
Choi to categorize the optimum times for downloading software
in relation to what application is being operated on the gaming
machine; realizing that CPU and/or memory usage may be
predetermined based upon operation of certain applications (or
pre-identified game events). Subsequently, once a particular
application is initiated, it is identified for controlling (or
varying) the download speed to a rate appropriate for that
application to operate on the gaming machine, the speeds can
be adjusted depending on whether gaming machine is executing
a high usage level video game or sitting idle. This allows the
variation of download speed to be dynamically performed
according to Choi [page 1, para 0010]. Such changes to Lee
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Appeal 2015-001475
Application 12/113,134
would make the download operation transparent to the user of
the gaming machine.
Id. at 5.
Appellants traverse the Examiner’s rejection by arguing that the prior
art does not teach or suggest slowing down the configurable download speed
of the gaming machine when there is money in the gaming machine. Appeal
Br. 6. 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 7. According to Appellants, “Choi in particular is limited
to what can be done during game play [] not in anticipation thereof.” Id.
at 8.
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. 7. The Examiner observes that one
of the applications that may be used to determine the download speed is
playing a game. Id. (citing Choi 8, 49). The Examiner states that Choi is
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
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Application 12/113,134
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 8. 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. at 3. Appellants argue that making a wager is a separate event
from inserting money into a machine. Id. 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 operation or running.”
Id. 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 down 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.
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Application 12/113,134
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 Tflf 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. H 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. ]f 70. 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.
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
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Application 12/113,134
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 Tflf 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
systems 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'1'’ out of the claim. That does not
mean, however, that the Examiner erred in rejecting the claim. The
Examiner’s rejection reasons that, “once a particular application [or “pre­
identified game event[]”] is initiated, it is identified for controlling (or
varying) the download speed to a rate appropriate for that application to
operate on the gaming machine, the speeds can be adjusted depending on
whether gaming machine is executing a high usage level video game or
sitting idle. This allows the variation of download speed to be dynamically
performed according to Choi.” Non-Final Action 5. Choi varies download
speed based on the occurrence of an event, which may be identified in
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Application 12/113,134
advance. Choi 158. 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 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.
Moreover, it is reasonably foreseeable that commencement of game play is
likely to follow soon after putting money into the machine. See Appeal
Br. 6 (“system resource usage will increase imminently”). In our opinion,
merely triggering the slowing of download speed upon the event of putting
money into the gaming machine, instead of commencement of game play, 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
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Application 12/113,134
the Examiner’s legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner’s unpatentability rejection of
claims 1—20.
Claim 21
In view of our disposition of the Examiner’s rejection of claim 21
under Lee, Choi, and Jhang below, we do not reach the Examiner’s rejection
of claim 21 under Lee and Choi.
Unpatentability of Claim 21
under Lee, Choi, and Jhang
Claim 21 is an independent claim. Claims App. The Examiner finds,
and Appellants do not dispute, that Jhang discloses the use of a processor to
write data blocks from a buffer memory unit into a main memory unit.
Non-Final Action 10. The Examiner concludes that it would have been
obvious to combine the teachings of Jhang with those of Lee and Choi and
to achieve the claimed invention. Id. at 11. In traversing the Examiner’s
rejection, Appellants rely solely on arguments regarding whether Choi
identifies game events associated with CPU usage that are used to vary
download speed, which we previously considered and found unpersuasive
with respect to claim 1 and are equally unpersuasive here. Appeal Br. 8—9.
We sustain the Examiner’s unpatentability rejection of claim 21 over
Lee, Choi, and Jhang.
DECISION
The decision of the Examiner to reject claims 1—21 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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