Roxor Gaming Limited

Patent Trials and Appeals Board

Dec 21, 2020

2020004687 (P.T.A.B. Dec. 21, 2020)

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.
14/210,948 03/14/2014 Thomas Newton RG01-029-02 1043
166282 7590 12/21/2020
Roxor Gaming, Ltd
c/o Fincham Downs LLC
90 Grove Street, Suite 205
Ridgefield, CT 06877
EXAMINER
KIM, PATRICK
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
12/21/2020 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):
ePAIR@finchamdowns.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte THOMAS NEWTON,
CHRIS TARGETT, and ANDREW JOHN WEBB

Appeal 2020-004687
Application 14/210,948
Technology Center 3600
____________

Before RICHARD M. LEBOVITZ, JEFFREY N. FREDMAN, and
RACHEL H. TOWNSEND, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
The Examiner rejected claims 1–13 under 35 U.S.C. § 103 as obvious.
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject the claims. 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 Gamesys
Ltd.. Appeal Br. 3.
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STATEMENT OF THE CASE
The Examiner rejected the claims in the Final Office Action as
follows:
Claims 1–8, 10, 12, and 13 under 35 U.S.C. § 103 as obvious in view
of Hsiao et al. (US 2012/0124146 A1, published May 17, 2012) (Hsiao) and
Davis et al. (US 2009/0150514 A1, published June 11, 2009) (“Davis”).
Final Act. 9.
Claim 9 under 35 U.S.C. § 103 as obvious in view of Hsiao, Davis,
and Hare et al. (US 2007/0121667 A1, published May 31, 2007)2 (“Hare”).
Final Act. 13.
Claim 11 under 35 U.S.C. § 103 as obvious in view of Hsiao, Davis,
and Brown et al. (US 2002/0078158 A1, published Jun. 20, 2002)
(“Brown”). Final Act. 14.
Claim 1, the only independent claim on appeal, is representative and
reproduced below (bracketed numbers added for reference to the steps in the
claim):
1. A method of operating a messaging service platform to
selectively activate a communication channel via which to send
a message to a player of an online game provided by an online
gaming platform, comprising:
[1] determining, by a processing device of the messaging
service platform, a level of messaging engagement of the
player, wherein the level of messaging engagement comprises
messaging feedback data descriptive of a history of
responsiveness, of the player, to at least one previous message
sent to the player,
wherein the messaging feedback data descriptive of the
history of responsiveness is based on one or more of: (i) a

2 The Examiner cited the incorrect patent publication number for Hare et al.
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message open event; (ii) a message marked-as-spam event; (iii)
a message click event; and (iv) a message bounce event;
[2] selecting, by the processing device of the messaging
service platform and based on the level of messaging
engagement of the player, two or more of:
(i) a target communication channel from a plurality of
available communication channels, the target communication
channel being selected based on a communication channel rank
derived from the messaging feedback data descriptive of the
history of responsiveness;
(ii) a target device of the player from a plurality of
available devices of player, the target device being selected
based on a device rank derived from the messaging feedback
data descriptive of the history of responsiveness; and
(iii) a target message transmittal time from a plurality of
available message transmittal times, the target message
transmittal time being selected based on a message transmittal
time rank derived from the messaging feedback data descriptive
of the history of responsiveness; and
[3] transmitting, by the processing device of the
messaging service platform and to the player, a targeted
electronic communication in accordance with the selected two
or more of (i) the target communication channel, (ii) the target
device of the player and (iii) the target message transmittal
time.
DISCUSSION
Claim 1 is directed to a “method of operating a messaging service
platform to selectively activate a communication channel via which to send a
message to a player of an online game provided by an online gaming
platform.” In the first step of the claim, a level of messaging engagement of
the player is determined. This determination is based on feedback data from
a message previously sent to the player (“messaging feedback data
descriptive of a history of responsiveness”). One of four recited events is
used as the feedback to determine the level of messaging engagement. For
the purpose of the rejection, the Examiner looked only at the first listed
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event, “(i) a message open event,” namely when a player responds to a
message by opening it.
In step [2] of the claim, the determination of the level of engagement
is used to select two or more of: a target communication channel, a target
device of a player, and a target transmittal time. Step [2] also indicates that
the available channels and the devices of the players have been ranked based
on the messaging feedback data. Step [3] of the claim, the final recited step,
transmits a target communication to the player using the selections made in
step [2]. Thus, the claim determines “a desired and/or appropriate
communication channel via which future or additional
messages/communications should be sent to” a player. Spec. ¶ 4.
The Examiner found that Hsiao describes steps [1]–[3] of claim 1.
Final Act. 9–10. The Examiner found that Hsiao “does not explicitly
disclose a device rank derived from the messaging feedback data descriptive
of the history of responsiveness” as recited in step [2](ii) of the claim, but
found that Davis describes this limitation. Final Act. 10. The Examiner
determined it would have been obvious to one of ordinary skill in the art “to
combine the messaging system [of] Hsiao with the ranking abilities of Davis
as a need exists to provide messages to users through the proper channels.”
Id. The Examiner concluded that “[r]anking communication channels and
devices in order to determine the optimal messaging channel would
contribute to selecting the best messaging channel for reaching the
recipient.” Id.
Appellant argues that there is no evidence on the record that Hsiao
and Davis describe the limitation of claim 1 of “wherein the messaging
feedback data descriptive of the history of responsiveness is based on one or
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more of: (i) a message open event; (ii) a message marked-as-spam event;
(iii) a message click event; and (iv) a message bounce event.” Appeal Br. 17.
Appellant states that Hsiao “tries to figure out the best way to reach a
recipient,” but does not “take into account specific actions with respect to a
recipient’s engagement with a particular message (e.g., a particular e-mail).”
Appeal Br. 18. Referring to paragraph 33 of Hsiao, Appellant states that
Hsiao “determines messaging channel usage frequency (with respect to a
recipient) to weight which channel to use for a new communication” which
“cannot reasonably be equated to the claimed ‘message open event’, which
is a message-specific event that is utilized by the pending claims to do more
than find the best way to contact the recipient.” Appeal Br. 19. Appellant
agrees with the Examiner that Hsiao teaches using a “message open event,”
but states that Hsiao uses it to reduce the number of duplicate messages
provided to the recipient and therefore does not meet the limitation of step
[1](i). Id. (citing Hsiao ¶¶ 68–73).
In response to Appellant’s argument, the Examiner further cited
paragraph 75 of Hsiao which the Examiner found to describe a method in
which the “preferred messaging channel of the user” is determined “by the
user’s replies to or views of a message via one of the messaging channels.”
Ans. 5.
Appellant contends that paragraph 75 of Hsiao “describes how a
predictive model may be developed to infer which communications channels
a user prefers based on their usage of one channel with respect to other
channels.” Reply Br. 4. In contrast, Appellant argues that the claims are
“directed to message-specific success metrics . . . to gauge success of a
message, not frequency of channel usage.” Id. Appellant further states that
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Hsiao “is directed to figuring out the best way to get a message in front of a
user while the claims being appealed are directed to preserving
communications channel reputation levels by focusing on message
success/failure – not frequency of channel usage” as in Hsiao. Id.
Appellant’s arguments do not persuade us that Examiner erred.
Hsiao describes a messaging system that “selects the messaging
channels based on [one] or more signals that are indicative of, for example,
the current status of the recipient or the recipient’s past messaging activities”
and then delivers the message to the selected channel. Hsiao ¶ 3. Hsiao
describes, in one embodiment, “a training process that develops a predictive
model for selecting messaging channels.” Hsiao ¶ 74. Hsiao teaches that the
predictive model can then be used “to select one or more messaging
channels for delivering messages to their recipients.” Id. Hsiao further
teaches that the model is built “by collecting training data that includes
information about preferred messaging channels for a group of users and
signals associated with the preferred messaging channels.” Hsiao ¶ 75. Hsiao
explains that “the messaging module 120 may deliver a message to a user
through multiple messaging channels. The user replies to or views the
message via one of the messaging channels, which provides the messaging
module 120 with an indication of the messaging channel preferred by the
user.” Id.3 (emphasis added).

3 Compare this statement to the description in the Specification: “In some
embodiments, customer (or another user such as an online game player)
engagement with transmitted communications (such as notifications,
advertisements, and/or offers) may be gauged, ranked, scored, and/or
otherwise processed and/or analyzed to determine a desired and/or
appropriate communication channel via which future or additional
messages/communications should be sent to the customer.” Spec. ¶ 4.
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As explained above, Hsiao, in its training process for selecting a
channel based on the recipient’s past messaging activity, teaches that a
user’s preference for a messaging channel is indicated by the user replying
to or viewing a message. Hsiao ¶ 75. We agree with the Examiner’s finding
that a view of the message is an indication that the message has been opened
and therefore meets the limitation of “(i) a message open event.” Appellant
does not dispute this finding, but instead argues that it does not satisfy the
claim limitation because it looks at the frequency of the channel usage not
“message success/failure.” Reply Br. 3–4. Appellant’s argument is not
persuasive.
The disputed limitation is “determining . . . a level of messaging
engagement of the player” using “messaging feedback data descriptive of
the history of responsiveness” which is based on “(i) a message open event.”
In other words, a “message open event” is the feedback/response used to
determine the player’s level of engagement. The claim does not expressly
recite what the engagement is with, but based on the claim as a whole, we
understand it to be the engagement with the message for the purpose of
selecting a communication channel and target device of the player as recited
in claim 1, step [2](i) and (ii). The claim, therefore, comprises similar steps
to what Hsiao is doing, namely using a viewing of a message to determine
which communication channel to select for further communication, the same
purpose of the claim.
The rejected claim recites that “the messaging feedback data
descriptive of the history of responsiveness is based on one or more of: (i) a
message open event.” Hsiao also looks at the history of responsiveness:

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“The user replies to or views the message via one of the messaging channels,
which provides the messaging module 120 with an indication of the
messaging channel preferred by the user.” Hsiao ¶ 75. The “view” of the
message in Hsiao, which is the same as a “message open event,” is used to
indicate channel preference through which to select a channel for sending
future messages. Appellant did not distinguish this activity from the claimed
activity of selecting a target communication channel based on the message
open event of step [1].
Appellant states that Hsiao looks at frequency, not at success of a
message. Reply Br. 4–5. However, as explained above, both Hsiao and the
claim use an opened message as a history of responsiveness to select a
messaging channel for further communication. If opening a message is the
“success” asserted by Appellant, Hsiao does just that, as well. Appellant did
not explain why this disclosure in Hsiao does not meet the disputed
limitation recited in claim 1.
Appellant did not provide separate arguments for the dependent
claims or the obviousness rejections further based on Hare and Brown.
Accordingly, claims 2–13 fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Ba
sis
Affirmed Reversed
1–8, 10, 12,
13
103 Hsiao, Davis 1–8, 10, 12,
13

9 103 Hsiao, Davis,
Hare
9
11 Hsiao, Davis,
Brown
11
Overall
Outcome
1–13

TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED