Ex Parte Parks

Patent Trial and Appeal Board

Apr 14, 2016

11865681 (P.T.A.B. Apr. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/865,681 10/01/2007
118925 7590 04/15/2016
Erise IP, P.A.
6201 College Blvd., Ste 300
Overland Park, KS 66211
FIRST NAMED INVENTOR
Jakob Parks
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.
2532-5.01 5766
EXAMINER
FLETCHER, MARLON T
ART UNIT PAPER NUMBER
2837
MAILDATE DELIVERY MODE
04/15/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAKOB P ARKS 1
Appeal2014-005793
Application 11/865,681
Technology Center 2800
Before BRADLEY R. GARRIS, CATHERINE Q. TIMM, and JAMES C.
HOUSEL, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant appeals from the Examiner's
rejections of claims 1--4 and 6---18 under 35 U.S.C. § 102(e) as anticipated by
Egozy (US 2008/0113797 Al, pub. May 15, 2008) and claim 5 under 35
U.S.C. § 103(a) as unpatentable over Egozy in view of Knapp (US
1 Ubisoft Entertainment is identified as the real party in interest. App. Br. 1.
Appeal2014-005793
Application 11/865,681
2007/0256551 Al, pub. Nov. 8, 2007).2 We have jurisdiction under 35
U.S.C. § 6.
We AFFIRM.
Appellant claims a method for evaluating a live instrument
performance comprising providing a set of arrangement performance data
points, receiving a sequence of live instrument performance data points,
determining if any live instrument performance data points match the
corresponding arrangement performance data points, and scoring the live
performance accordingly (independent claim 1 ). Appellant also claims an
apparatus comprising structural elements for performing the functional steps
recited in the claimed method (independent claim 11) as well as a computer
readable medium having instruction to be executed by a processor for
performing these functional steps (independent claim 18).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. A method for evaluating a live instrument
performance, comprising:
providing a set of arrangement performance data, the set
of arrangement performance data further comprising a plurality
of arrangement data points wherein each arrangement data point
further comprises a note and a time tag associated with each
note;
receiving a sequence of live instrument performance
data points, wherein each live instrument performance data
point has a note and a time tag;
determining, for a particular arrangement data point
having a particular arrangement note and a particular
2 Claims 19-23 stand withdrawn from further consideration by the
Examiner. See Final Action (Office Action Summary).
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Appeal2014-005793
Application 11/865,681
arrangement time tag, if any live instrument performance data
points in the plurality of live instrument performance data
points have a note equal to the particular arrangement note
and a time tag that is within a time window around the
particular arrangement time tag that identifies matching live
performance data points; and
scoring, if there are the matching live performance data
points, the live instrument performance by comparing the
notes and time tags of the matching live instrument
performance data points with the particular note and particular
time tag of the particular arrangement data point.
Appellant does not present separate arguments specifically directed to
the dependent claims under rejection (App. Br. 6-9). Therefore, the
dependent claims will stand or fall with their parent independent claims, of
which claim 1 is representative.
We will sustain the above rejections based on the findings of facts and
rebuttals to arguments expressed in the Final Action and in the Answer with
the following comments added for emphasis and completeness.
Appellant argues without embellishment that Egozy does not disclose
providing a set of arrangement performance data as required by claim 1
(App. Br. 6-7, Reply Br. 3).
Appellant's argument does not address and therefore does not show
error in the Examiner's finding that, in Egozy,
[t]he arrangement is provided by the cues or tags provided as
instructional play for the player, wherein the real time play of
the player is compared to the actual arrangement of the
performance to be played, wherein accuracy is determined
based on the timing in which [the] player plays the performance
indicated by the cues or tags
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Appeal2014-005793
Application 11/865,681
(Final Action 6). Moreover, this finding is well supported by a
preponderance of evidence including Egozy's teachings that "the cues may
represent note information ... or any other time-varying aspects of the
musical content" (i-f 34) and that "musical data represented by the game
elements [or cues] ... may be substantially simultaneously played as audible
music ... [which is] manipulated in response to the player's proficiency in
executing game elements" (i-f 35).
Appellant also contends that "the [claim 1] process of 'receiving a
sequence of live instrument performance data points, wherein each live
instrument performance data point has a note and a time tag' is not found in
Egozy" (App. Br. 6; see also Reply Br. 3).
This contention is not persuasive because it is contrary to Egozy's
disclosure. As indicated above and further explained by the Examiner,
Egozy teaches that, when the cues reach their target markers, the player
inputs live instrument performance data points including notes and time tags
(see, e.g., Ans. 6-7 (citing Egozy Fig. 2, i1 3 7 ("the player is required to
provide input when a game element [or cue] ... passes under or over a
respective one of a set of target markers")). To the extent Appellant believes
Egozy's live instrument performance data points do not include notes and
time tags, such a belief is inconsistent with the express teaching of Egozy
that the player data being analyzed "may include any number of parameters
that describe how well the player is performing ... [including] a correctly-
played note or an incorrectly-played note ... [and] a timing value
representing the difference between actual performance of the musical event
and expected performance of the musical event" (i-fi-f 54--56).
Finally, Appellant argues that Egozy fails to disclose the claim 1 step
of determining "if any live instrument performance data points have a note
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Appeal2014-005793
Application 11/865,681
equal to the particular arrangement note and a time tag that is within a time
window around the particular arrangement time tag that identifies matching
live performance data points" (App. Br. 7, Reply Br. 4).
Appellant's argument lacks convincing merit. As previously
indicated and as explained by the Examiner (see Final Action 6, Ans. 6-7),
the live instrument performance data points of Egozy include note and time
tag parameters which are compared to corresponding parameters of the
expected (i.e. arrangement) performance data in analyzing the player's
performance (see again Egozy i-f 54--56; see also id. at i-f 45 ("Each player
scores depending on how faithfully he or she reproduces their portions of the
musical composition.")).
In summary, Appellant's arguments reveal no error in the Examiner's
findings which are well supported by a preponderance of evidence.
The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connect with this
appeal may be extended under 35 C.F.R. § l.136(a).
AFFIRMED
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