Disney Enterprises, Inc.

Patent Trials and Appeals Board

Dec 8, 2021

2021002847 (P.T.A.B. Dec. 8, 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.
15/424,673 02/03/2017 Michael P. GOSLIN DISN/0280US (085657) 3394
77754 7590 12/08/2021
DISNEY ENTERPRISES, INC.
c/o Patterson & Sheridan, LLP
24 Greenway Plaza
Suite 1600
Houston, TX 77046-2472
EXAMINER
GRANT, MICHAEL CHRISTOPHER
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
12/08/2021 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):
PAIR_eOfficeAction@pattersonsheridan.com
PSDocketing@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL P. GOSLIN and JOSEPH L. OLSON

Appeal 2021-002847
Application 15/424,673
Technology Center 3700
Before DANIEL S. SONG, ANNETTE R. REIMERS, and
MICHAEL L. WOODS, Administrative Patent Judges.

WOODS, 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 1–8, 11, 13, 15, and 19–27. Appeal Br.
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(a). Appellant identifies Disney Enterprises, Inc., a wholly-
owned subsidiary of The Walt Disney Company, as the real party in interest.
Appeal Br. 3.
Appeal 2021-002847
Application 15/424,673

2
CLAIMED SUBJECT MATTER
The application is titled “Fitness-Based Game Mechanics.” Spec. 1.
Claims 1, 19, and 20 are independent. See Appeal Br. 31–39 (Claims App.).
We reproduce independent claim 1, below:
1. A computer-implemented method to provide
immersive gameplay experiences by unlocking avatar abilities
based on corresponding physical activity, the computer-
implemented method comprising:
determining a fitness objective for a user to complete,
wherein the fitness objective is determined by a computer game
executing on a computing device in a first physical environment,
the fitness objective specifying an environmental condition;
monitoring, by a first sensor component of a fitness device
worn by the user, physical activity in order to acquire first sensor
data, wherein the physical activity is performed by the user in a
second physical environment that is separate from the first
physical environment and that excludes the computing device;
monitoring, by a second sensor component of the fitness
device, an environmental attribute of the second physical
environment in order to acquire second sensor data, wherein the
environmental attribute is monitored when the physical activity
is performed by the user, wherein the first and second sensor data
are transmitted from the fitness device to the computing device
via a network;
determining, based on analyzing the first and second
sensor data, that the user completed the fitness objective in
performing the physical activity under the specified
environmental condition;
unlocking a locked ability of the avatar by updating a
game state of the computer game based on the completed fitness
objective, the ability having a predefined correspondence with
the fitness objective, wherein the ability, once unlocked, is
performable by the avatar;
rendering, in real time by the computer game when
executed by one or more computer processors and based on the
updated game state, a plurality of frames depicting the avatar
performing the unlocked ability in the computer game, wherein
Appeal 2021-002847
Application 15/424,673

3
the unlocked ability is performed responsive to a command from
the user; and
outputting the plurality of frames for display to the user.
Id. at 31.
REJECTIONS
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1–8, 11, 13, 15, 19–27 101 Eligibility
1–8, 11, 13, 19–24 103 Ghaffari2, Walling3, Poisso4
15 103 Ghaffari, Walling, Poisso,
Nevermind5, Hardi6
25 103 Ghaffari, Walling, Poisso,
Nevermind, Hardi, Lake7
26, 27 103 Ghaffari, Walling, Nevermind,
Hardi, Greenslit8

2 U.S. Patent Pub. No. US 2017/0095732 A1, pub. Apr. 6, 2017
(“Ghaffari”).
3 U.S. Patent Pub. No. US 2012/0315986 A1, pub. Dec. 13, 2012
(“Walling”).
4 “WoW Rookie: Primary stats for beginners” (Oct. 28, 2009),
https://www.engadget.com/2009/10/28/wow-rookie-primary-stats-for-
beginners/ (visited on 1/8/2020) (“Poisso”).
5 “Nevermind” video game, features evidenced by Biofeedback (Jan. 29,
2016),
https://web.archive.org/web/20160129123724/http://nevermindgame.com:80
/biofeedback/ (visited on Sept. 26, 2018) (“Nevermind”).
6 U.S. Patent Pub. No. US 2013/0339850 A1, pub. Dec. 19, 2013 (“Hardi”).
7 U.S. Patent Pub. No. US 2015/0005911 A1, pub. Jan. 1, 2015 (“Lake”).
8 Greenslit, Dave “Mountain moonlighting: Night hiking adds new
dimension,” (Dec. 26, 2012),
https://www.telegram.com/artide/20121226/NEWS/112269997/ (visited on
July 27, 2020).
Appeal 2021-002847
Application 15/424,673

4
OPINION
I. 101 Rejection
The Examiner rejects claims 1–8, 11, 13, 15, and 19–27 as patent-
ineligible under a judicial exception to 35 U.S.C. § 101. Final Act. 3.
Appellant argues these claims as a group. See Appeal Br. 22. We select
independent claim 1 as the representative claim, with claims 2–8, 11, 13, 15,
and 19–27 standing or falling with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).

a. Governing Law and USPTO Guidance
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to
exclude “[l]aws of nature, natural phenomena, and abstract ideas.” Alice
Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219.
Concepts that have been determined to be abstract ideas, and thus
patent-ineligible, include certain methods of organizing human activity. Id.
at 219–20; Bilski v. Kappos, 561 U.S. 593 (2010). These also include
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)) and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)).
Appeal 2021-002847
Application 15/424,673

5
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].”’ Id. (quoting Mayo, 566 U.S. at 77) (alterations in original).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
For purposes of implementing the Supreme Court’s two-step
framework, the USPTO Director issued 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (issued January 7, 2019) (hereinafter,
the “Guidance,” and now incorporated into MPEP §§ 2103–21.06.07(c)).
Step 2A, Prong 1, of the Guidance involves first determining whether the
claim recites any judicial exception, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing human
activity, or mental processes). See 84 Fed. Reg. at 52.
If the claim is determined to recite a judicial exception, Step 2A,
Prong 2, of the Guidance involves next determining whether the claim
recites additional elements that integrate the judicial exception into a
practical application. See id.; see also MPEP § 2106.05(a)–(c), (e)–(h).
Only if the claim both recites a judicial exception and fails to integrate
the judicial exception into a practical application, do we proceed to Step 2B
of the Guidance. At Step 2B, we determine whether the claim adds a
specific limitation beyond the judicial exception that is not “well-
Appeal 2021-002847
Application 15/424,673

6
understood, routine, conventional” in the field (see MPEP § 2106.05(d)), or
simply appends well-understood, routine, conventional activities previously
known to the industry, specified at a high level of generality, to the judicial
exception. See 84 Fed. Reg. at 56.

b. Step 1 of the Alice/Mayo Analysis—Statutory Category
Claim 1 recites a “computer-implemented method.” Appeal Br. 31
(Claims App.). The computer-implemented method is directed to one of the
statutory classes of subject matter eligible for patenting, namely, a process.
See 35 U.S.C. § 101 (“Whoever invents or discovers any new and useful
process . . . .”).

c. Step 2A, Prong 1—Recitation of Judicial Exception
The Examiner determines that claim 1 is “directed to an abstract idea
in the form of mental processes, in terms of a process that can be performed
in the human mind or by a human using pen or paper and/or as a method of
organizing human activity” (Final Act. 3), with the “exception of the
limitations . . . claimed directed to generic sensor, processor, and display
devices” (see Ans. 5 (“The rejection made in the Final basically identified
Appellant’s entire claimed invention as being an abstract idea, with the
exception of the limitations Appellant also claimed directed to generic
sensor, processor, and display devices”)). In particular, the Examiner
determines that the following steps can be performed in the human mind or
by a human using a pen and paper and, in the alternative, is simply a method
of organizing human activity:
(1) “determining a fitness objective for a user to complete . . .”;
Appeal 2021-002847
Application 15/424,673

7
(2) “monitoring . . . physical activity in order to acquire first
sensor data . . .”;
(3) “monitoring . . . an environmental attribute of the second
physical environment in order to acquire second sensor data .
. .”;
(4) “determining . . . that the user completed the fitness objective
in performing the physical activity . . .”;
(5) “unlocking a locked ability of the avatar by updating a game
state of the computer game based on the completed fitness
objective . . .”;
(6) “rendering . . . a plurality of frames depicting the avatar . . .”;
and
(7) “outputting the plurality of frames for display to the user.”
See Final Act. 3; see also Appeal Br. 31 (Claims App.).
Appellant argues that “the Office misapplies prong one of Step 2A to
improperly include claim limitations that should be classified as additional
elements rather than as an abstract idea.” Appeal Br. 16 (emphasis added).
Appellant explains that “at least the unlocking, rendering, and outputting
steps are misclassified as reciting an abstract idea” and that “[n]either do the
unlocking for the avatar and the rendering of the avatar correspond to any
method of organizing human activity.” Id. at 17.
Appellant’s argument is unavailing. Simply because Appellant
wishes to classify the “unlocking,” “rendering,” and “outputting” steps as
additional elements does not mean the Examiner erred in determining that
these steps are also abstract. As explained correctly by the Examiner, “there
is no requirement that for the first prong of the Mayo test that each method
step has to be treated in its entirety as being identified as either part of the
abstract idea or something claimed in addition to the abstract idea.” Ans. 6.
Appeal 2021-002847
Application 15/424,673

8
We agree with the Examiner that multiple steps recited in claim 1
recite training a person for the purpose of obtaining fitness objectives by
incentivizing that person with game rewards. See Ans. 4. We further agree
with the Examiner and characterize these steps as reciting one of the certain
methods of organizing human activity that have been identified as an
abstract idea. See id. (explaining the same). The Federal Circuit determined
that claims directed to a computerized method of training a human were
ineligible, because training programs organize human activity. Multimedia
Plus, Inc. v. PlayerLync LLC, 198 F.Supp.3d 264, 269–70 aff’d 695 F.
App’x 577 (Fed. Cir. 2017); In re Noble Systems Corp. Appeal No. 2016-
007634 (PTAB Aug. 10, 2018), aff’d 755 Fed. Appx. 1017 (Fed. Cir. 2019).
As to Appellant’s argument that the “unlocking,” “rendering,” and
“outputting” steps do not correspond to a method of organizing human
activity (see Appeal Br. 17), we disagree.
As to “unlocking,” specifically, we agree with the Examiner’s
interpretation that “unlocking” is simply to “make it available.” Ans. 7
(citing definition of “unlocking” at
https://www.macmillandictionary.com/us/dictionary/american/unlock_1/).
Upon reviewing the Specification, we do not find a lexicographic definition
of “unlock” and Appellant does not present a conflicting definition in its
Appeal Brief. Indeed, “Appellant is claiming a mental step because nothing
is required by the claimed ‘unlocking’ other than the attribute of the
character changes from one state to another.” Ans. 7. The Examiner is
correct in that “[i]t is within the mental abilities of human beings to
determine that something has changed from a first state to a second state
Appeal 2021-002847
Application 15/424,673

9
(e.g., someone who was formerly a ‘stranger’ is now considered a
‘friend.’).” Id.
As to Appellant’s assertion that “rendering . . . a plurality of frames
depicting the avatar performing the unlocked ability” and “outputting the
plurality of frames for display” are “misclassified as reciting an abstract
ideas” (see Appeal Br. 17–18), we disagree. Rather, we agree with the
Examiner that these steps recite mental processes (see Ans. 7–9), as the
“rendering . . . frames depicting an avatar” and “outputting . . . [the] frames
for display” are similar to the steps determined to be abstract by our
reviewing court in Electric Power Group. See Electric Power Group, LLC
v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016) (determining that
collecting information, analyzing it, and displaying results from certain
results of the collection and analysis was held to be an abstract idea).
For the above reasons, Appellant does not apprise us of error in the
Examiner’s determination that claim 1 recites a judicial exception, namely,
abstract ideas in the form of “mental processes, in terms of a process that can
be performed in the human mind or by a human using a pen and paper
and/or as a method of organizing human activity.” Final Act. 3.
Accordingly, Appellant’s argument does not apprise us of Examiner
error under Step 2A, Prong 1.

d. Step 2A, Prong 2—Additional Elements that Integrate the
Exception into a Practical Application
Having agreed with the Examiner that claim 1 recites a judicial
exception, namely, mental processes as well as one of certain methods of
organizing human activity, we next consider whether the claims recite
Appeal 2021-002847
Application 15/424,673

10
“additional elements [that] integrate the exception into a practical
application.” See 84 Fed. Reg. at 54.
Under our Guidance, this determination involves: (a) identifying
whether there are any additional elements recited in the claim beyond the
judicial exception; and (b) evaluating those additional elements individually
and in combination to determine whether they integrate the exception into a
practical application. See id. at 54–55. An exemplary consideration
indicative of an additional element (or a combination of elements) that may
integrate the exception into a practical application is an additional element
that reflects an improvement in the functioning of a computer, or an
improvement to other technology or technical field. See id. at 55. This
evaluation requires one to determine whether an additional element or a
combination of additional elements in the claim applies, relies on, or uses
the judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the exception. Id. If the recited judicial exception is
integrated into a practical application, then the claim is not “directed to” the
judicial exception. Id.
The Examiner determines that:
[T]he claims do not include additional elements that either
alone or in an ordered combination are sufficient to claim a
practical application because to the extent that, e.g., a computer
game, “one or more fitness devices”, one or more accelerometer
sensors, one or more inertial measurement sensors, one or more
electromyography (EMG) sensors, and one or more heart rate
sensors, an augmented reality device, non-transitory computer
readable medium, one or more computer processors, a computing
device, and/or rendering in real time a plurality of frames in a
computer game, these are merely claimed to add insignificant
Appeal 2021-002847
Application 15/424,673

11
extra-solution activity to the judicial exception (e.g., data
gathering) and/or do no more than generally link the use of a
judicial exception to a particular technological environment or
field of use.
Final Act. 4.
Appellant argues that the following additional elements “integrate the
alleged judicial exception into a practical application” (Appeal Br. 18):
[T]he fitness objective specifying an environmental
condition ... wherein the physical activity is performed by the
user in a second physical environment that is separate from the
first physical environment and that excludes the computing
device . . .
unlocking a locked ability of the avatar by updating a
game state of the computer game based on the completed fitness
objective, the ability having a predefined correspondence with
the fitness objective, wherein the ability, once unlocked, is
performable by the avatar;
rendering, in real time by the computer game when
executed by one or more computer processors and based on the
updated game state, a plurality of frames depicting the avatar
performing the unlocked ability in the computer game, wherein
the unlocked ability is performed responsive to a command from
the user; and
outputting the plurality of frames for display to the user.
Id. Appellant cites to the Specification and asserts that “one of ordinary skill
in the art would have recognized that the recited additional elements improve
existing computer gaming environments by unlocking certain abilities within
the gaming experience based on physical activities meeting a fitness
objective.” Id. at 20 (citing Spec. ¶¶ 19, 20) (emphasis added). Appellant
further argues that “the game state of the computer game is transformed into
a different state that allows the avatar to perform the unlocked ability and
Appeal 2021-002847
Application 15/424,673

12
that allows the rendering of the frames depicting the avatar performing the
unlocked ability.” Id. (emphasis added).
Appellant’s arguments are not persuasive. Rather, we agree with the
Examiner that “no improvement is made to the claimed computing devices
but instead these devices are merely claimed to provide their generic, well-
known” functions. Ans. 10. For example, the claimed sensors are not
improved to “sense more precisely, or use less power, and/or be able to be
manufactured more cheaply.” Id.
As to Appellant’s assertion that “the game state of the computer game
is transformed into a different state that allows the avatar to perform the
unlocked ability and that allows the rendering of the frames depicting the
avatar performing the unlocked ability” (Appeal Br. 20 (emphasis added)),
we disagree. The Examiner is correct in that “such depiction of computer
games by employing the claimed ‘plurality of frames’ is generic [and] well-
known. . . and is not a ‘technical’ improvement to computer gaming.” Ans.
12. Indeed, the claims do not recite an improvement to graphics that result
in the avatar being refreshed more quickly or using less memory. See id.
The steps of “unlocking,” “rendering,” and “outputting” “do[] no more than
require a generic computer to perform generic computer functions.”
See Alice, 573 U.S. at 224 (holding patent ineligible claims that “amount to
nothing significantly more than an instruction to apply the abstract idea . . .
using some unspecified, generic computer” and in which “each step does no
more than require a generic computer to perform generic computer
functions” (internal quotation marks, citation omitted)); see also
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (“Adding routine [,]
additional steps . . . does not transform an otherwise abstract idea into patent
Appeal 2021-002847
Application 15/424,673

13
eligible subject matter.”); Bancorp Services, L.L.C., v. Sun Life Assur. Co. of
Canada (U.S.), 687 F.3d 1266, 1274, 1278 (appending generic computer
components does not “salvage an otherwise patent ineligible process”).
To summarize, the claims do not recite any additional elements (e.g.,
“computing device” or “sensor component”) that (1) improve the
functioning of a computer or other technology, (2) are applied with any
particular machine, (3) effect a transformation of a particular article to a
different state, or (4) are applied in any meaningful way beyond generally
linking the use of the judicial exception to a particular technological
environment, such that the claim as a whole is more than a drafting effort
designed to monopolize the exception. See MPEP § 2106.05(a)–(c), (e)–(h).
Accordingly, Appellant’s argument does not apprise us of Examiner
error under Step 2A, Prong 2.
e. Step 2B—Inventive Concept
The next consideration is whether claim 1 adds a specific limitation
beyond the judicial exception that is not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)), or simply appends well-
understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
See 84 Fed. Reg. at 56.
The Examiner determines that:
[T]he claims do not include additional elements that either
alone or in an ordered combination are sufficient to amount to
significantly more than the judicial exception because to the
extent that, e.g., a computer game, “one or more fitness devices”,
one or more accelerometer sensors, one or more inertial
measurement sensors, one or more electromyography (EMG)
sensors, and one or more heart rate sensors, an augmented reality
Appeal 2021-002847
Application 15/424,673

14
device, non-transitory computer readable medium, one or more
computer processors, a computing device, and/or rendering in
real time a plurality of frames in a computer game are claimed
these were all generic, well-known, and conventional at the time
of filing. As evidence that these additional elements were all
generic, well-known, and conventional at the time of filing,
Applicant’s specification discloses them in a manner that
indicates that the additional elements are sufficiently well-known
that the specification does not need to describe the particulars of
such additional elements to satisfy 35 U.S.C. § 112(a). See
Applicant’s specification at, e.g., Figures 1 and 4 and
accompanying text in regard to, e.g., the “fitness device”. Such
a cursory disclosure in terms of how to make or use such a device
would not have been enabling at the time of filing were such a
device generic, well-known, and conventional. Applicant
likewise makes similarly cursory disclosures in regard to the
other additionally claimed elements.
Final Act. 5 (emphasis added).
Appellant disagrees with the Examiner, contending that “the claims
recite an additional element or combination of elements that are not well-
understood, routine, or conventional,” specifically:
[T]he fitness objective specifying an environmental
condition . . . wherein the physical activity is performed by the
user in a second physical environment that is separate from the
first physical environment and that excludes the computing
device . . .
unlocking a locked ability of the avatar by updating a
game state of the computer game based on the completed fitness
objective, the ability having a predefined correspondence with
the fitness objective, wherein the ability, once unlocked, is
performable by the avatar;
rendering, in real time by the computer game when
executed by one or more computer processors and based on the
updated game state, a plurality of frames depicting the avatar
performing the unlocked ability in the computer game, wherein
Appeal 2021-002847
Application 15/424,673

15
the unlocked ability is performed responsive to a command from
the user; and
outputting the plurality of frames for display to the user.
Appeal Br. 21. Appellant explains that “it is not well-understood, routine, or
conventional to unlock a locked ability of an avatar based on physical
activity performed by a user in a second physical environment separate from
a first physical environment and that excludes the computing device, the
physical activity completing a fitness objective that specifies an
environmental condition.” Id.
Appellant’s argument is unavailing.
Rather, we agree with the Examiner that “Appellant mis-analyzes [sic]
the ‘significantly more’ analysis of the Mayo test,” as the “test is not
whether Appellant’s allegedly non-obvious and/or novel abstract idea when
embodied by generic computing and sensing devices is also novel and/or
non-obvious.” Ans. 13. Appellant appears to believe that the steps of
“unlocking a locked ability of an avatar,” “rendering . . . . a plurality of
frames depicting the avatar performing the locked ability,” and “outputting
the plurality of frames for display” are not well-understood, routine, or
conventional. As explained above, however, the step of “unlocking” is
reasonably interpreted as making something available and the steps of
“rendering” and “outputting” are merely presenting the results of the abstract
processes of collecting and analyzing information.
The Examiner is correct in that additional elements recited in the
claim, including those reciting the computing devices and sensing devices,
do not constitute significantly more than the abstract idea itself. Final Act.
5; see also Ans. 13–14.
Appeal 2021-002847
Application 15/424,673

16
Accordingly, Appellant’s argument does not apprise us of Examiner
error under Step 2B.
f. Summary of 101 Rejection
For the foregoing reasons, we sustain the rejection of independent
claim 1, and of claims 2–8, 11, 13, 15, and 19–27, which fall therewith (see
37 C.F.R. § 41.37(c)(1)(iv)), as patent-ineligible under the judicial exception
to 35 U.S.C. § 101. We further adopt as our own the Examiner’s findings
and reasoning as set forth in the Final Office Action, Answer, and Advisory
Action dated October 8, 2020.
II. Ghaffari, Walling, and Poisso (Claims 1–8, 11, 13, and 19–24)
The Examiner rejects claims 1–8, 11, 13, and 19–24 as unpatentable
over Ghaffari in view of Walling and Poisso. Final Act. 6. Appellant
presents separate arguments for independent claim 1 and dependent claim 8,
but otherwise argues these claims as a group. See Appeal Br. 23–29. We
select independent claim 1 as the representative claim, with claims 2–7, 11,
13, and 19–24 standing or falling with claim 1 (37 C.F.R. § 41.37(c)(1)(iv)),
and address Appellant’s argument to claim 8 separately, below.
a. Claims 1–7, 11, 13, 19–24
In rejecting independent claim 1, the Examiner finds that Ghaffari
teaches a computer implemented method comprising the following steps:
(1) a computer game executing on an computing device in a first
physical environment (e.g., Ghaffari ¶ 13);
(2) monitoring first sensor data (e.g., Ghaffari ¶ 10);
(3) determining, based on analyzing the first sensor data, the
user’s physical fitness level in performing a physical activity;
Appeal 2021-002847
Application 15/424,673

17
(4) unlocking a locked ability performable by the avatar (e.g.,
Ghaffari ¶ 61).
Final Act. 6–7.
The Examiner further relies on Walling for teaching several of the
recited steps, including, inter alia, “determining a fitness objective,”
“wherein the physical activity is performed in a second physical
environment that is separate from the first physical environment,”
“transmitting from the fitness device to the computer device via a network,”
and “unlocking a locked ability . . . by the avatar.” See id. at 8 (citations
omitted).
In combining the teachings of Ghaffari and Walling, the Examiner
reasons that:
[I]t would have been obvious to have added the functionality
taught by Walling to the method otherwise taught by Ghaffari,
by adding fitness challenges that (as taught by Walling) to the
augmented reality gaming system otherwise taught by Ghaffari,
in order to incentivize players to improve their physical fitness
by undergoing real world fitness challenges that could result in,
e.g., their character unlocking greater health and strength in the
augmented reality game, proportional to their level of physical
exertion in performing the fitness challenge.
Id. at 9.
The Examiner relies on Poisso in the alternative for teaching “that in
World of Warcraft[,] the player’s strength determines the displayed
gameplay by the player’s avatar in terms of increasing weapon attack
power,” “to the extent [that] the cited prior art may fail to teach displaying
frames of an avatar in a computer game differently based upon a certain
physical attribute of the avatar wherein the first ability is performed
responsive to a user command.” Final Act. 10 (citing Poisso, 7). In relying
Appeal 2021-002847
Application 15/424,673

18
on the teachings of Poisso, the Examiner further reasons that “it would have
been obvious to have added the functionality taught by Poisso to the system
otherwise taught by Ghaffari and Walling, by having the augmented strength
of the avatar as taught by Ghaffari affect the manner in which the avatar is
depicted in the computer game as taught by Poisso, in order to increase play
excitement.” Id.
In contesting the rejection of claim 1, Appellant argues that the
Examiner erred in its finding as to Ghaffari, as the “cited portion of Ghaffari
discusses adjusting a strength or health of a character based on the detected
heart rate and respiration rate of a user,” and that “neither the strength nor
health of the character in Ghaffari constitutes anything that, once unlocked,
is performable by the avatar in a manner depictable via a plurality of
frames.” Appeal Br. 25 (referencing in part Ghaffari ¶ 61).
Appellant’s argument is not persuasive.
As discussed above, we construe “unlocking” as simply making
available. See Ans. 14 (defining “unlock” as “make it available” (citation
omitted)). The Examiner cites to Ghaffari’s paragraph 61 for providing an
example in which the user’s avatar is able to steady a rifle in the game as a
result of the user having a lower respiration rate. Id. at 15. The Examiner
explains that “[t]he avatar’s ability to better steady the rifle,” accordingly,
“ha[s] been ‘unlocked’ by the user.” Id.
Ghaffari discloses a “system 100 [that] can be used to personalize a
user’s experience in a video game, virtual reality, or augmented reality.”
Ghaffari ¶ 61 (bold emphasis omitted here and throughout the other citations
to Ghaffari). Ghaffari further discloses that “one or more sensing devices
110 can transmit the physiologic or biometric information (e.g., heart rate,
Appeal 2021-002847
Application 15/424,673

19
respiration rate, or motion) to the game console or virtual reality controller
130.” Id. Ghaffari explains that “the virtual representation (e.g., a user’s
character) can have the same heart rate and/or respiration rate as the user . . .
[and] the system can monitor the user’s respiration rate and use that
information to sway the sniper scope while he/she is aiming in the same
rhythm.” Id. The Examiner’s finding is supported by Ghaffari’s disclosure.
Accordingly, we affirm the Examiner’s rejection of independent claim
1 and claims 2–7, 11, and 13, which fall therewith. 37 C.F.R.
§ 41.37(c)(1)(iv).
b. Claim 8
Claim 8 depends from claim 1 and further recites, “wherein the
physical activity is monitored by performing an operation comprising
determining one or more types of sensor data that the fitness device is
capable of collecting.” Appeal Br. 33 (Claims App.).
In rejecting claim 8, the Examiner finds that Ghaffari teaches the
limitation, referencing the rejection of claims 1 and 2. Final Act. 11.
In contesting the rejection of claim 8, Appellant submits that the cited
art does not teach “determining any capability of a fitness device in terms of
types of sensor data that the fitness device can collect.” Appeal Br. 27
(citations omitted).
In the Answer, the Examiner explains that paragraphs 49 and 50 of
Ghaffari teaches “determining a sensor data pattern that constitutes
occurrence of a fitness event.” Ans. 16. The Examiner explains that
“Appellant does not claim . . . any manner or algorithm whereby the
determination in Claim 8 must be made.” Id. at 17 (emphasis omitted). The
Examiner explains that:
Appeal 2021-002847
Application 15/424,673

20
This is within the BRI of the claimed “determining one or more
types of sensor data that the fitness device is capable of
collecting”, at a minimum, to the extent that by determining
where sensor data constitutes an occurrence of a fitness event it,
thereby, also determines a type of sensor data that the fitness
device is capable of collecting.
Id. at 16.
The Examiner has the better position.
Ghaffari discloses that “sensing device 110 can be configured . . . to
collect raw sensor data.” Ghaffari ¶ 49. Ghaffari further discloses:
The sensing device 110 can receive and process external
commands which cause the device to modify its configuration
and/or operation for collection, processing, and reporting of
sensor data . . . to produce different streams of data and/or
different sets of higher order biometrics around activity tracking,
activity performance, and activity quality data. Based on the
biometrics determined and/or other data, the sensing device 110
can, based on an algorithm or set of rules, select a sensing
modality which is optimal for a particular activity or on-body
location that has been detected, and automatically modify its
configuration and/or operation for collection, processing, and
reporting of sensor data, including turning on or off various
sensor combinations, changing sampling rates and measurement
ranges, modifying buffering and filtering schemes, and applying
different digital signal processing and algorithms to raw sensor
output to produce different streams of data and/or different sets
of higher order biometrics around activity tracking, activity
performance, and activity quality data.
Id. ¶ 50.
We find the disclosure described in paragraphs 49 and 50 (including
the teaching of selectively collecting various types of sensor data for activity
tracking and performance) satisfies the claim limitation “wherein the
physical activity is monitored by performing an operation comprising
Appeal 2021-002847
Application 15/424,673

21
determining one or more types of sensor data that the fitness device is
capable of collecting.” Appeal Br. 33 (Claims App.).
Appellant’s argument does not apprise us of error in the rejection of
claim 8. Accordingly, we affirm the rejection of claim 8.
c. Summary of Ghaffari, Walling, and Poisso (Claims 1–8, 11, 13, 19–24)
We affirm the Examiner’s rejection of claims 1–8, 11, 13, and 19–24
as unpatentable over Ghaffari, Walling, and Poisso. We also adopt as our
own the Examiner’s findings and reasoning as set forth in the Final Office
Action, Answer, and Advisory Action dated October 8, 2020.
III. Rejection of Claims 15 and 25–27
Appellant does not present additional arguments contesting the
rejection of claims 15 and 25–27 as unpatentable over the cited art. See
Appeal Br. 28–29. Accordingly, Appellant does not apprise us of Examiner
error, and we affirm the rejection of claims 15 and 25–27 under 35 U.S.C.
§ 103(a).
CONCLUSION
For the foregoing reasons, we sustain the rejections under 35 U.S.C.
§§ 101, 103.

Appeal 2021-002847
Application 15/424,673

22
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/Basis Affirmed Reversed
1–8, 11, 13,
15, 19–27
101 Eligibility 1–8, 11, 13, 15,
19–27

1–8, 11, 13,
19–24
103 Ghaffari, Walling,
Poisso
1–8, 11, 13, 19–
24

15 103 Ghaffari, Walling,
Poisso, Nevermind,
Hardi
15
25 103 Ghaffari, Walling,
Poisso, Nevermind,
Hardi, Lake
25
26, 27 103 Ghaffari, Walling,
Poisso, Nevermind,
Hardi, Lake,
Greenslit
26, 27
Overall
Outcome
1–8, 11, 13, 15,
19–27

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