Ex Parte Lind et alDownload PDFPatent Trial and Appeal BoardJan 31, 201814016172 (P.T.A.B. Jan. 31, 2018) 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. 14/016,172 09/02/2013 Clifton Lind 988-1020-C3 9237 92852 7590 Multimedia Games, Inc. Attn: JP Cody, Esq. 206 Wild Basin South Austin, TX 78746 EXAMINER COBURN, CORBETT B ART UNIT PAPER NUMBER 3714 NOTIFICATION DATE DELIVERY MODE 02/02/2018 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): jp.cody@mm-games.com peggy. zaongo @ mm-games .com jpv2u@yahoo.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CLIFTON LIND, GORDON T. GRAVES, GARY L. LOEBIG, JEFFERSON C. LIND, JOSEPH R. ENZMINGER, RODNEY L. WILL YARD, and ROBERT LANNERT Appeal 2017-0001291 Application 14/016,1722 Technology Center 3700 Before ANTON W. FETTING, KENNETH G. SCHOPFER, and TARA L. HUTCHINGS, Administrative Patent Judges. SCHOPFER, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Appellants request rehearing of the decision entered November 15, 2017 (“Decision”), which affirmed the Examiner’s rejection of claims 1-16 as directed to ineligible subject matter under 35 U.S.C. § 101. Appellants contend that we misapprehended or overlooked several points of law or fact related to our analysis under Alice Corp. Pty. Ltd. v. CIS Bank International, 1 Our decision references the Request for Rehearing (“Req. Reh’g,” filed Jan. 11, 2018), Appeal Brief (“Br.,” filed June 8, 2015), the Examiner’s Answer (“Ans.,” mailed Oct. 5, 2015), and the Final Office Action (“Final Act.,” mailed Dec. 8, 2014). 2 According to Appellants, the real party in interest is Multimedia Games, Inc. Br. 3. Appeal 2017-000129 Application 14/016,172 134 S. Ct. 2347 (2014). Req. Reh’g 2. We find no point of law or fact that we overlooked or misapprehended in arriving at our Decision. DISCUSSION Appellants raise several issues related to our application of the two- step Alice framework in the Decision. We address each in turn below. First, Appellants assert that we have described the claims at too high a level of abstraction that is inconsistent with the Alice framework. Req. Reh’g 3. Specifically, Appellants argue that “the claims are not directed to managing a bingo game at all and are not directed to simply displaying bingo game results.” Id. Appellants indicate that the Decision overlooks “the different types of results specified in the claims, namely, the game ending result... and additional results including a ‘first winning result.’” Id. (citing claim 1). Appellants allege that there “is nothing abstract about the way the present claims require identifying different types of bingo results and then displaying the different types of results at different electronic player stations” in a spinning reel-type graphical presentation or a playing card graphical representation. Id. at 3—4. Appellants’ argument does not persuade us that we overlooked any point of law or fact in arriving at our Decision. As an initial matter, we find Appellants’ argument here untimely. Our Decision relied on the Examiner’s findings and analysis regarding the Alice framework, including the Examiner’s finding that the claims are directed to conducting a bingo game and displaying a bingo game results. See Final Act. 2; Ans. 3. Appellants could and should have raised these arguments in response to the Examiner’s findings and conclusion. See 37 C.F.R. § 41.52(a)(1). Further, under part one of the Alice framework, we “look at the ‘focus of the claimed advance 2 Appeal 2017-000129 Application 14/016,172 over the prior art’ to determine if the claim’s ‘character as a whole’ is directed to excluded subject matter.” Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec. Power Grp., LLCv. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)). Under step-one, we agree with the Examiner’s conclusion that claim 1, as whole, is directed to managing a bingo game and displaying results, which we find to be an abstract idea. Next, Appellants argue that they do not apply preemption as a standalone test for patent eligibility, but rather in the context of the Alice framework, and that “it is difficult to see how the complete lack of preemption ... is not determinative of the analysis”. Req. Reh’g. 5-6. Appellants’ arguments here do not persuade that we overlooked any point of law or fact in arriving at our Decision. We also find these arguments untimely. In particular, our response to Appellants’ argument regarding preemption is consistent with the Examiner’s response thereto, and thus, the arguments could and should have been raised in a timely filed Reply Brief. See Ans. 8; Decision 5. Furthermore, our Decision does not indicate that Appellants’ rely on preemption as a standalone test for eligibility. Rather, our Decision simply concludes that any preemption concerns are inherently addressed by the Examiner’s Alice analysis. Id. Appellants also present arguments “pursuant to 37 C.F.R. § 41.52(a)(2) in view of recent court precedent regarding step two of the” Alice framework. Req. Reh’g 6. Under step two, Appellants argue that the inventive concept of the present claims that warrants patent eligibility is the combination of identifying the game ending result to determine the designations (bingo draw) to be used to identify other results, combined with displaying these different types of bingo results via the non- bingo game presentations at 3 Appeal 2017-000129 Application 14/016,172 different electronic player stations, spinning reel game presentations (independent claims 1 and 12) and playing card game presentations (independent claims 6 and 12). Id. at 8. Further, Apellants liken the claims here to those addressed in BASCOMGlob. Internet Servs. v. AT&T Mobility, LLC, 827 F.3d 1341 (Fed. Cir. 2016) because “the inventive concept lies in the non-conventional and non-generic arrangement of known conventional pieces” including the “inventive solution to the technical problem of presenting bingo results in a more interesting fashion... while maintaining the fundamental characteristics of the underlying bingo game.” Req. Reh’g 8. We find this argument unpersuasive. First, regarding the alleged inventive concept quoted above, we are not persuaded that this represents anything more than the abstract idea itself. That the claim identifies different results and displays results differently does not differentiate those steps identified by the Appellants from the abstract concept identified, i.e. they amount to no more than managing a bingo game and displaying its results. Second, we are not persuaded that the claims here are similar to the claims found eligible in BASCOM. The claims in BASCOM were found eligible because they were directed to “a technology-based solution (not an abstract-idea-based solution implemented with generic technical components in a conventional way) to filter content on the Internet that overcomes existing problems with other Internet filtering systems.” BASCOM, 827 F.3d at 1351. Thus, the claims were found eligible for reasons similar to those set forth in DDR Holdings in which the Federal Circuit found the claims “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” See DDR Holdings, LLCv. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). 4 Appeal 2017-000129 Application 14/016,172 Here, Appellants do not persuade us that the claims are necessarily rooted in computer technology or present a technical solution to a technical problem. In particular, we find that the problem of “presenting bingo results in a more interesting fashion” is not a problem rooted in any particular technology. See Req. Reh’g 8. Furthermore, it is not clear to us how the claims reflect or require the use of a “non-conyentional or non-generic arrangement of known conventional pieces.” Although the ultimate result of displaying bingo results via a spinning reel or card game may be unconventional, Appellants do not point to any technology that is used in a non-conventional manner. Finally, we are not persuaded that we overlooked or misapprehended any point of law or fact related to Appellants’ argument that the claims may not be performed mentally or with only conventional computer technology. On this point, we find Appellants’ arguments untimely as they address the Examiner’s findings presented in the Answer, for which Appellants’ provided no reply. See Ans. 3-6. Thus, Appellants arguments could and should have been presented previously. See 37 C.F.R. § 41.52(a)(1). CONCLUSION We have carefully reviewed the original Decision in light of Appellants’ request, but we find no point of law or fact that we overlooked or misapprehended in arriving at our decision. Therefore, Appellants’ request for rehearing is denied. DENIED 5 Copy with citationCopy as parenthetical citation