Shane Venis

Patent Trials and Appeals Board

Apr 1, 2022

2020004666 (P.T.A.B. Apr. 1, 2022)

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. 15/093,068 04/07/2016 Shane Venis 1071-2U 7478 137360 7590 04/01/2022 Total Awareness Consulting Services, LLC 1389 Center Drive, Suite 200 Park City, UT 84098 EXAMINER DAVIS, CHENEA ART UNIT PAPER NUMBER 2421 NOTIFICATION DATE DELIVERY MODE 04/01/2022 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): rob@totalawarenessconsulting.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHANE VENIS Appeal 2020-004666 Application 15/093,068 Technology Center 2400 Before TREVOR M. JEFFERSON, AMBER L. HAGY, and PHILLIP A. BENNETT, Administrative Patent Judges. JEFFERSON, 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, 2, 4-14, and 17-20. 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(a). Appellant identifies the real party in interest as Shane Venis. Appeal Br. 3. Appeal 2020-004666 Application 15/093,068 2 CLAIMED SUBJECT MATTER The claims are directed to a leaderboard and advertising distribution system. Spec., Abstr. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A leaderboard parsing and distribution system comprising: a) at least one computing device comprising at least one processor; b) a plurality of display devices communicatively coupled to the at least one computing device, the plurality of display devices associated with a single venue; and c) a non-transitory machine readable medium comprising instructions configured to cause the at least one processor to: i) access leaderboard data comprising at least identification of competitors competing within the single venue; and ii) for at least two display devices in the plurality of display devices: 1) select a first subset of the leaderboard data to be displayed on a first of the at least two display devices, the first of the at least two display devices configured for multiple spectator viewing, the first subset of the leaderboard data comprising at least identification of at least a first of the competitors; 2) select a second subset of the leaderboard data to be displayed on a second of the at least two display devices, the second of the at least two display devices configured for multiple spectator viewing, the second subset of the leaderboard data comprising at least identification of at least a second of the competitors; 3) cause the first subset of the leaderboard data to be displayed on the first of the at least two display devices, the first subset displayed to a first group of spectators; and 4) cause the second subset of the leaderboard data to be displayed on the second of the at least two display devices, the second subset displayed to a second group of spectators; and Appeal 2020-004666 Application 15/093,068 3 wherein the first subset of the leaderboard data is distinct from the second subset of the leaderboard data. Appeal Br. 19 (Claims App.) REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Nuyttens US 2007/0033289 A1 Feb. 8, 2007 Naito US 2008/0030300 A1 Feb. 7, 2008 Davis US 2015/0127434 A1 May 7, 2015 Ainsworth US 2015/0262109 A1 Sept. 17, 2015 Chang US 2014/0009366 A1 Jan. 9, 2014 Bastawros US 2014/0277627 A1 Sept. 18, 2014 REJECTIONS Claims 1, 2, 5-7, 9, and 11 stand rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Naito, Davis, and Ainsworth. Non- Final Act. 8-13. Claim 4 stands rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Naito, Davis, Ainsworth, Chang, and Nuyttens. Non- Final Act. 13-15. Claims 8 and 12 stand rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Naito, Davis, Ainsworth, and Chang. Non-Final Act. 16. Claim 10 stands rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Naito, Davis, Ainsworth, and Bastawros. Non-Final Act. 16-17. Claims 13, 14, and 18-20 stand rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Chang and Nuyttens. Non-Final Act. 17-20. Appeal 2020-004666 Application 15/093,068 4 Claim 17 stands rejected under 35 U.S.C. § 103 as obvious over the combined teachings of Chang, Nuyttens, Naito, and Bastawros. Non-Final Act. 20-21. OPINION We review the appealed rejections for error based upon the issues identified by Appellant, considering the contentions and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Arguments not made are forfeited.2 Unless otherwise indicated, we adopt the Examiner’s findings in the Non-Final Office Action and the Answer as our own and add any additional findings of fact for emphasis. We address the rejections below. Claims 1, 2, 5-7, 9, and 11 Appellant contends that the Examiner failed to adequately articulate a prima facie case of obviousness because the Examiner’s combination and modifications would cause latency in the delivery of the leaderboard data and the identified motivation does not provide a sufficient rationale to combine Naito and Davis. Appeal Br. 5-6; see Reply 3. We disagree with Appellant, finding that the Examiner has provided specific reasoning and rationales to combine the references. Specifically, the Examiner asserts that the combination provides: 2 See In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020) (“Because Google failed to present these claim construction arguments to the Board, Google forfeited both arguments.”); 37 C.F.R. § 41.37(c)(1)(iv) (2019) (“Except as provided for in §§ 41.41, 41.47 and 41.52, any arguments or authorities not included in the appeal brief will be refused consideration by the Board for purposes of the present appeal.”). Appeal 2020-004666 Application 15/093,068 5 It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the system of Naito to include the limitations as taught by Davis for the advantage of efficiently allowing more diverse but desirable information to be displayed synchronously to users in various types of facilities that provides vast information to multiple users continuously and concurrently, and that “It would have been obvious to a person having ordinary skill in the art before the effective filing date of the invention to modify the system of Naito in view of Davis to include the limitations as taught by Ainsworth for the advantage of providing more specific information for a particular competition associated with a user. Ans. 6 (quotations omitted); see In re Sernaker, 702 F.2d 989, 994-95 (Fed. Cir. 1983); see also Dystar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006) (“Indeed, we have repeatedly held that an implicit motivation to combine exists not only when a suggestion may be gleaned from the prior art as a whole, but when the ‘improvement’ is technology-independent and the combination of references results in a product or process that is more desirable . . . .”). In further support of the combination, the Examiner cites the advantages of efficiently allowing more diverse but desirable information to be displayed synchronously to users in various types of facilities that provides vast information to multiple users continuously and concurrently, and providing more specific information for a particular competition associated with a user are reasonable to at least make the system more desirable to users. Ans. 7. Contrary to Appellant’s arguments (Appeal Br. 5), we find that the Examiner has articulated reasoning with a rational underpinning as to the motivation to combine Naito and Davis. See KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). Appeal 2020-004666 Application 15/093,068 6 We also find Appellant’s arguments and evidence that the claimed invention reduces latency in the delivery of desired leaderboard data within a single venue conclusory and unsupported by reference to the Specification or claims. See Appeal. Br. 5; Reply 3. Indeed, Appellant’s passing reference to waiting for segments of interest to be displayed (Spec. ¶ 2) fails to indicate how the claims solve latency issues in the delivery of data. Appeal. Br. 5; Reply 3. In addition, because Appellant’s arguments regarding latency are not commensurate with the scope of the claims, they are unpersuasive. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Finally, we also agree with the Examiner that Naito addresses displaying information to users at the same time and any potential latency issues regarding the combination of references. See Ans. 4-5 (citing Naito ¶¶ 138- 141). With respect to the claim limitations, Appellant contends that Naito, Davis, and Ainsworth do not teach or suggest “the second subset of the leaderboard data comprising at least identification of at least a second of the competitors” as required in claim 1. Appeal Br. 6-7. We disagree, finding that Appellant’s arguments attack Ainsworth individually as lacking a limitation disclosed in the combination of references. In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). As the Examiner persuasively shows, the combination of Naito, Davis, and Ainsworth is used to teach the claimed invention, with Naito teaching distinct subsets of leaderboard data for a single venue. See Ans. 9 (citing Naito ¶¶ 126-131, 138, 150-161, 344-345, 377; Ainsworth ¶¶ 11- 23, 32-33, Figs. 1 and 2). We also find unavailing Appellant’s arguments that Naito, Davis, and Ainsworth fail to teach a system configured to “cause the second subset of Appeal 2020-004666 Application 15/093,068 7 the leaderboard data to be displayed on the second of the at least two display devices” as recited in claim 1. Appeal Br. 7-9 (emphasis omitted). Appellant’s arguments are not commensurate in scope with the claims, as nothing in the claim language precludes the users of the system in Naito from also being deemed spectators in the current claim. Ans. 13-14. Furthermore, Appellant’s arguments assail the references individually and fail to address persuasively the Examiner’s rejection based on the combination of references. Thus, contrary to Appellant’s arguments, the Examiner’s rejection is not merely based on Naito’s displaying general information (Appeal Br. 8), but instead is based on the combination of Naito, Davis, and Ainsworth with specific citations to their teachings (Ans. 14). Appellant argues that Naito and Davis lead away from the claimed invention. Appeal. Br. 9-11. Appellant’s argument is not persuasive. A reference teaches away from a claimed invention if it “criticize[s], discredit[s], or otherwise discourage[s]” modifying the reference to arrive at the claimed invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellant fails to identify persuasive evidence that Naito and Davis teach away from the claimed invention. Moreover, we agree with the Examiner that Naito and Davis in combination with Ainsworth teach the subsets of leaderboard data recited in the claimed invention. See Ans. 16-19 (providing citations to examples of data displayed in Naito, Davis, and Ainsworth). Based on the foregoing, we sustain the Examiner’s rejection of independent claim 1, and claims 2, 5-7, 9, and 11, which fall with claim 1. Appeal 2020-004666 Application 15/093,068 8 Claim 4 Appellant argues that the Examiner fails to provide a sufficient rationale to combine Naito, Davis, Ainsworth, Chang, and Nuyttens. Appeal. Br. 11-12. We disagree, finding that the Examiner provides a persuasive reasoning in support of Naito, Davis, and Ainsworth in combination with Chang to allow a distinct display of different information in a robust manner to improve the user experience. Ans. 21-22. We also find unpersuasive Appellant’s argument that Naito, Davis, Ainsworth, Chang, and Nuyttens fail to teach “at least one display device in the plurality of display devices is: a) configured to be portable; and b) disposed to at least one mount associated with the single venue” as recited in claim 4. Appellant’s arguments improperly focus on Chang separately, when the rejections are based on the combination. Indeed, we are persuaded by the Examiner’s arguments and evidence that Chang and Nuyttens in combination teach the limitations of dependent claim 4. Ans. 23-24. For the reasons above, we determine that the Examiner did not err in rejecting claim 4. Claim 13, 14, and 18-20 Appellant argues that Examiner has not provided sufficient rationale to combine Chang and Nuyttens with respect to the rejection of claims 13, 14, and 18-20. Appeal. Br. 14-15. We disagree, finding that the Examiner has provided persuasive reasoning to support the modification of “the system of Chang to include the limitations as taught by Nuyttens for the advantage of allowing more distinct display of different information in a more robust and diverse manner.” Ans. 28-29. Appeal 2020-004666 Application 15/093,068 9 We are not persuaded by Appellant’s arguments that Chang and Nuyttens fail to teach a system configured to “select at least one group of display devices in the plurality of groups of display devices” and to “add the at least one advertisement to an advertising queue associated with the at least one group of display devices” as recited in independent claim 13. Appeal Br. 15-17 (emphasis omitted). The Examiner provides persuasive evidence and citations to support that Chang and Nuyttens teach a group of display and advertisement limitations. Ans. 27-28 (citing inter alia Chang ¶¶ 14- 18, 20-21, 31-34, 47-51, 60-61, Figs, 1, 4, 5; Nuyttens ¶¶ 1, 6, 50, 100- 102, 145, 160-167, 181-185, 215-220, 259-261). For the reasons above, we determine that the Examiner did not err in rejecting claims 13, 14, and 18-20. Remaining Claims 8, 10, 12, and 17 Appellant does not argue dependent claims 8, 10, 12, and 17 separately, which stand with their respective independent claims. Thus, we determine that the Examiner did not err in rejecting claims 8, 10, 12, and 17. CONCLUSION We sustain the Examiner’s rejections of claims 1, 2, 4-14, and 17-20. More specifically, we sustain the Examiner’s rejections of: claims 1, 2, 5-7, 9, and 11 under 35 U.S.C. § 103 as obvious over the combined teachings of Naito Davis, and Ainsworth; claim 4 under 35 U.S.C. § 103 as obvious over the combined teachings of Naito, Davis, Ainsworth, Chang, and Nuyttens; claims 8 and 12 under 35 U.S.C. § 103 as obvious over the combined teachings of Naito, Davis, Ainsworth, and Chang; Appeal 2020-004666 Application 15/093,068 10 claim 10 under 35 U.S.C. § 103 as obvious over the combined teachings of Naito, Davis, Ainsworth, and Bastawros; claims 13, 14, and 18-20 under 35 U.S.C. § 103 as obvious over the combined teachings of Chang and Nuyttens; and claim 17 under 35 U.S.C. § 103 as obvious over the combined teachings of Chang, Nuyttens, Naito, and Bastawros. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 5-7, 9, 11 103 Naito, Davis, Ainsworth 1, 2, 5-7, 9, 11 4 103 Naito, Davis, Ainsworth, Chang, Nuyttens 4 8, 12 103 Naito, Davis, Ainsworth, Chang 8, 12 10 103 Naito, Davis, Ainsworth, Bastawros 10 13, 14, 18- 20 103 Chang, Nuyttens 13, 14, 18- 20 17 103 Chang, Nuyttens, Naito, Bastawros 17 Overall Outcome 1, 2, 4-14, 17-20 Appeal 2020-004666 Application 15/093,068 11 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