2020005538 (P.T.A.B. Apr. 2, 2021)

Krissa Watry

Patent Trials and Appeals BoardApr 2, 2021

2020005538 (P.T.A.B. Apr. 2, 2021)

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. 14/793,979 07/08/2015 Krissa Watry 3829.004 1050 107285 7590 04/02/2021 Gregory Finch 91 Rutledge Avenue Charleston, SC 29401 EXAMINER HENRY, THOMAS HAYNES ART UNIT PAPER NUMBER 3715 NOTIFICATION DATE DELIVERY MODE 04/02/2021 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): USPTO@DocketTrak.com gfinch@finchpaolino.com lmorey@finchpaolino.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KRISSA WATRY Appeal 2020-005538 Application 14/793,979 Technology Center 3700 Before BRETT C. MARTIN, JILL D. HILL, and BRANDON J. WARNER, Administrative Patent Judges. MARTIN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–20. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Dynepic, Inc. Appeal Br. 3. Appeal 2020-005538 Application 14/793,979 2 CLAIMED SUBJECT MATTER The claims are directed to an electronic, interactive space-based toy system. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. An interactive space-based toy system comprising: at least one space-based toy being deployed at a distance of at least low earth orbit, the at least one space-based toy being operable to send and receive communications; at least one earth-based toy being deployed at a ground level, the at least one earth-based toy comprising a child-friendly form factor, the child-friendly form factor comprising a vehicle, plush toy, or an electronic toy, the at least one earth-based toy being operable to send and receive wireless communications over a wireless communication network, and operable to initiate one or more play patterns in response to data associated with the at least one space-based toy; and, at least one earth-based communications system, the at least one earth-based communications system being operable to send and receive communications between the at least one space- based toy and the at least one earth-based toy, the communications from the at least one space-based toy being downlinked to said at least one earth-based communications system; and, a cloud server system, said cloud server system being operably engaged with said at least one earth-based communications system to receive said space-based toy data, said cloud server system operably engaged with said at least one earth-based toy to communicate one or more child play application instructions to said earth-based toy. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Scott US 2004/0026571 A1 Feb. 12, 2004 Gopal US 2015/0318916 A1 Nov. 5, 2015 Appeal 2020-005538 Application 14/793,979 3 REJECTIONS Claims 1–20 are rejected under 35 U.S.C. § 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor regards as the invention. Final Act. 2. Claims 1–202 are rejected under 35 U.S.C. § 103 as being unpatentable over Scott and Gopal. Final Act. 3. OPINION Indefiniteness Appellant does not argue the Examiner’s rejection of the claims as being indefinite. Accordingly, we summarily affirm the Examiner’s indefinite rejection of claims 1–20. Obviousness Appellant’s entire argument in this case revolves around Appellant’s use of the term “toy” in the claim and the assertion that the devices pointed out by the Examiner are not “toys” because, for example, “[t]he highly specialized and technical nature of the technology that is the subject matter of Scott is compounded by obstacles posed by the costs and risks involved in pre-planned space operations and the disastrous consequences of improper or accidental deorbiting and reentry of both satellites and aircrafts into populated areas.” Appeal Br. 8. Thus, according to Appellant, Scott cannot be considered to disclose a toy. 2 The Examiner, presumably, inadvertently omitted claims 19 and 20 from the listing of the claims subject to this rejection. The Examiner addresses both claims in explaining the rejection and so these claims are covered by this rejection. Appeal 2020-005538 Application 14/793,979 4 As the Examiner points out, however, Appellant’s own Specification belies this argument in that the Specification explains that “the space-based toy 500 may take the form of a satellite.” Spec. ¶ 17; see also Ans. 3. There is nothing toy-like about a satellite. Satellites are complicated devices that must be able to withstand the environment of space and require launch and deployment by sophisticated equipment operated literally by rocket scientists. Appellant asserts that “according to the Examiner’s own definition of ‘toy,’. . . anything that exists physically could or is capable of being ‘toyed with,’ and thus can be classified as a ‘toy.’.” Appeal Br. 9. We disagree. It is not the Examiner who has used an unreasonably broad definition of toy, but Appellant who has completely vitiated any accepted meaning of the term toy by referring to a satellite as a toy in the present disclosure. As to the child-friendly form factor, we first note that Appellant has not argued against the Examiner’s rejection that “child-friendly” is indefinite and we affirm that rejection. Given Appellant’s loose definition of the term “toy,” even if we did not affirm that rejection, we could not ascribe any significant meaning to a child-friendly form factor in the context of this invention for the same reasons. Further to the indefiniteness, it is unclear how such a child-friendly form factor would functionally differentiate the claimed device from one that is not child-friendly. For example, most tablets are designed for adult use or at least people of a certain technological aptitude. Certain tablets, however, are designed to be child-friendly simply by the addition of a soft housing and/or playful coloration. Even with such a child-friendly form-factor, such a tablet still operates in the same manner as a tablet designed for adults. If we were to give credence to Appellant’s arguments, an Examiner would be precluded from looking to adult tablets as Appeal 2020-005538 Application 14/793,979 5 prior art simply because an applicant had described their tablet-like device as a toy or as having a child-friendly form factor. Accordingly, and for the reasons stated above, we affirm the Examiner’s rejection of claims 1–20. CONCLUSION The Examiner’s rejections are AFFIRMED. More specifically, DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–20 112(b) Indefiniteness 1–20 1–20 103 Scott, Gopal 1–20 Overall Outcome 1–20 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED