Ex Parte Sterchi et al

Board of Patent Appeals and Interferences

Apr 28, 2011

10821269 (B.P.A.I. Apr. 28, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/821,269 04/09/2004 Henry Sterchi 723-1502 8633
27562 7590 04/28/2011
NIXON & VANDERHYE, P.C.
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
SUHOL, DMITRY
ART UNIT PAPER NUMBER
3716
MAIL DATE DELIVERY MODE
04/28/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte HENRY STERCHI and JEFF MILLER
____________

Appeal 2009-014796
Application 10/821,269
Technology Center 3700
____________

Before STEVEN D.A. McCARTHY, MICHAEL W. O’NEILL and
MICHAEL C. ASTORINO, Administrative Patent Judges.

ASTORINO, Administrative Patent Judge.

DECISION ON APPEAL
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The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s 1
final decision rejecting claims 1-24 and 104-111. More specifically, the 2
Examiner rejects claims 1-24 and 104-111 under 35 U.S.C. § 103(a) as being 3
unpatentable over Lipson (US 5,435,554, issued Jul. 25, 1995). Claims 1, 9, 4
17 and 104 are independent claims. We have jurisdiction over the appeal 5
under 35 U.S.C. § 6(b). 6
We REVERSE. 7
Claim 1 is illustrative of the claims on appeal. 8
1. In a baseball videogame, wherein 9
animated action is performed by a pitcher 10
character in response to input by a user provided 11
through a user-operable controller, a method of 12
controlling game play comprising: 13
beginning the pitcher character's wind-up; 14
after the pitcher character's wind-up has 15
begun, monitoring for user input on the user-16
operable controller indicating that a pitch is to be 17
released by the pitcher character; 18
detecting when user input is requested on 19
the user-operable controller requesting release of 20
the baseball pitch by the pitcher character; 21
comparing a time at which the user input is 22
detected to an optimal pitch release timing; 23
releasing the pitch corresponding to the time 24
at which the user input is detected since the pitcher 25
character's wind-up has begun; and 26
controlling a timing of a break on the 27
baseball pitch based on the comparison. 28
(Italics added). 29
Claim 9 recites a method of controlling game play in a baseball 30
videogame. The method includes, “after the pitcher character's wind-up has 31
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begun, monitoring for user input on the user-operable controller requesting 1
release of a baseball pitch by the pitcher character.” The method also 2
includes “releasing the pitch corresponding to the time at which the user 3
input is detected since the pitcher character's wind-up has begun.” 4
Claim 17 recites a method of controlling game play. The method 5
includes, “as the pitcher character's windup progresses, monitoring for user 6
input on the user-operable controller requesting release of a baseball pitch by 7
the pitcher character.” The method also includes “generating a display of 8
the pitcher character’s release of the pitch, the display of the release 9
corresponding to the time the user input is detected as the pitcher character’s 10
windup progresses.” 11
Claim 104 also recites a method of controlling game play. The 12
method includes, “after the display of the pitcher character's wind-up has 13
begun, monitoring for user input on the user-operable controller indicating 14
that a pitch is to be released by the pitcher character.” The method also 15
includes “displaying release of the pitch at the time the user input is 16
detected, the ball being released at a release point based at least on how long 17
until the user input is detected since the pitcher character's wind-up has 18
begun.” 19
The emphasized limitations of independent claims 1, 9, 17 and 104 20
require monitoring for user input during the pitcher’s wind-up, that is, after 21
the pitcher character’s wind-up (or the display of the pitcher character’s 22
wind-up) has begun and before the pitch is released (or the display of the 23
release of the pitch). 24
Lipson describes a baseball video game. (Lipson, col. 4, ll. 55-56). 25
Lipson describes a pitch selection cycle which must be completed before the 26
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animation representing a pitch begins. The pitch selection cycle has three 1
steps. In the first step, the user depresses one of three buttons to select the 2
type of pitch. In the second step, the user uses a gauge 66 to determine the 3
pitch quality. In the third step, the user uses a gauge 82 to determine the 4
power or speed of the pitch. (Lipson, col. 7, l. 59 – col. 8, l. 4). 5
The gauge 66 is divided into three regions 68, 70, 72. When Lipson’s 6
gauge 66 is used to determine pitch quality, the region 68 corresponds to a 7
“pitch” thrown to “pick off” a base runner 68. The region 70 corresponds to 8
pitch thrown to a batter. The region 72 corresponds to a pitch to a “pitch 9
out” thrown to the catcher outside batter’s strike zone. Each region 68, 70, 10
72 has a marker 76, 78, 80. (Lipson, col. 6, ll. 66-68). 11
The gauge 66 has an indicator 74. The indicator 74 travels along an 12
arcuate path in a clockwise direction through the regions 68, 70, 72 from the 13
time the pitch type is selected until a user depresses a button. (Lipson, col. 14
6, ll. 51-61 and fig. 3a). The closer the indicator 74 is to one of the markers 15
76, 78, 80 when the user depresses the button, the higher the quality of the 16
pitch. (Lipson, col. 6, l. 68 - col. 7, l. 12 and fig. 3a). In particular, Lipson 17
teaches that, when “throwing a pitch to the batter across home plate, the 18
player will attempt to stop the indicator 74 at marker 78 to obtain the 19
‘perfect grip’ on the ball.” (Lipson, col. 7, ll. 10-12). If the indicator 74 20
reaches the end of the gauge 66 before the user depresses a button, the 21
indicator 74 resets to the beginning of the first region 68 and continues to 22
move in a clockwise direction until the user inputs a selection by depressing 23
a button. (Lipson, col. 6, ll. 59-65). 24
Once the user depresses a button to stop the travel of the indicator 74 25
around the gauge 66, the gauge 82 appears for use in determining the pitch 26
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power or speed. (Lipson, col. 7, ll. 33-36). The gauge 82 has an indicator 1
86. The gauge 82 also has a marker 84. The indicator 86 travels along an 2
arcuate path in a counter-clockwise direction from the time the gauge 82 3
appears until a user depresses a button or the indicator 86 reaches the end of 4
the gauge 82. The closer the indicator 86 is to the marker 84 when the user 5
depresses the button, the higher the power or speed of the pitch. (Lipson, 6
col. 7, ll. 31-50 and fig. 3b). 7
The Examiner reasons that: 8
applicant’s invention is directed to using a gauge 9
to determine when a pitch break occurs in the 10
trajectory of the ball. Lipson’s invention is also 11
directed to using a gauge to determine when a 12
pitch break occurs in the trajectory of the ball. To 13
have the gauge correspond to the beginning of the 14
pitchers wind up would have been obvious to one 15
having ordinary skill in the art. In real baseball, 16
the pitch style and break point of the pitch is 17
dependent on the power and movement exhibited 18
during the wind up session and the ball release 19
session of the pitcher. Lipson’s gauges [measure] 20
these attributes (i.e. power and pitch style). To 21
now have these gauges correspond to the wind up 22
session of a pitcher would have been obvious to 23
one of ordinary skill in the art. 24
(Ans. 4). 25
The Appellants point out that independent claims 1, 9, 17 and 104 26
require a user input during the pitcher character’s wind-up. (See App. Br. 27
13; Reply Br. 2). In Lipson, the pitch animation sequence does not begin 28
until after the pitch selection cycle is completed. In other words, the pitch 29
animation does not begin until after the user input controlling the pitch 30
quality is received. (Lipson, col. 7, l. 59 – col. 8, l. 4). 31
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The Appellants also point out that indicator 74 of gauge 66 1
“repeatedly resets and rotates until a player presses a button . . . giv[ing] the 2
user a relatively long period of time to make a selection.” (Reply Br. 8, 3
citing Lipson, col. 6, ll. 59-65) (emphasis in original). In addition, a user of 4
Lipson’s game does not select a pitch power or speed using the gauge 82 5
until after the user input is received stopping the indicator 74 of the gauge 6
66. (Lipson, col. 7, l. 59 – col. 8, l. 4). In order for the game to receive the 7
user input indicative of pitch quality during the pitcher character’s wind-up, 8
one of ordinary skill in the art would have had to either eliminate the 9
repeated reset and rotation of the indicator 74 in the gauge 66 as well as the 10
selection of pitch power or speed using the gauge 82, or else lengthen the 11
pitcher’s wind-up to accommodate these features. 12
Lipson describes the effect of stopping the indicator 74 near the 13
marker of the gauge 66 as approximating a perfect grip rather than as 14
approximating a perfect release time. (Lipson, col. 7, ll. 10-12). Lipson 15
appears to describe the result generally as affecting pitch quality rather than 16
as specifically affecting the timing of the break. (See Lipson, col. 7, ll. 2-4). 17
Despite the similarity in function between Lipson’s gauge 66 and the 18
Appellants’ release meter, one of ordinary skill in the art would have had to 19
exercise some creativity to modify the Lipson’s pitch selection cycle so as to 20
select pitch quality using the gauge 66 during the pitcher character’s wind-21
up. In view of the number changes that one of ordinary skill in the art would 22
have had to make to adapt Lipson’s pitch selection cycle to meet the 23
limitations of the claims on appeal, the reasoning articulated by the 24
Examiner is not persuasive of obviousness. We do not sustain the rejection 25
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of claims 1-24 and 104-111 under § 103(a) as being unpatentable over 1
Lipson. 2
3
DECISION 4
We REVERSE the Examiner’s decision rejecting claims 1-24 and 5
104-111. 6
7
REVERSED 8
9
10
11
12
Klh 13