Ex Parte 7575512 et alDownload PDFPatent Trial and Appeal BoardJan 18, 201390009737 (P.T.A.B. Jan. 18, 2013) Copy Citation 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. 90/009,737 05/28/2010 7575512 1285.03 5181 8685 7590 01/22/2013 DERGOSITS & NOAH LLP Three Embarcadero Center Suite 410 SAN FRANCISCO, CA 94111 EXAMINER CLARK, JEANNE MARIE ART UNIT PAPER NUMBER 3993 MAIL DATE DELIVERY MODE 01/22/2013 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 PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte VEGAS AMUSEMENT, INC. ____________________ Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,5121 Technology Center 3900 ____________________ Before DANIEL S. SONG, JOSIAH C. COCKS, and WILLIAM V. SAINDON, Administrative Patent Judges. COCKS, Administrative Patent Judge. DECISION ON APPEAL 1 The patent involved in this reexamination proceeding (the “‘512 Patent”) issued to Julian J. Kennedy on August 18, 2009. Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 2 A. STATEMENT OF THE CASE This reexamination proceeding arose from a third-party request for ex parte reexamination filed on May 28, 2010. Vegas Amusement, Inc. (“Vegas Amusement”), the owner of the patent under reexamination, appeals under 35 U.S.C. §§ 134(b) and 306 from a final rejection of claims 1-162. We have jurisdiction under 35 U.S.C. §§ 134(b) and 306. We affirm. Related Appeal The ‘512 Patent involved in this reexamination proceeding is a continuation of U.S. Patent 5,688,174 (the “‘174 Patent”). Vegas Amusement states that the ‘174 Patent was also subject to reexamination (Control 90/011,023) and a final rejection applied in that reexamination has also been appealed to the Board. (App. Br., p. 5.) That appeal has been decided.3 References Relied on by the Examiner Sitrick 4,572,509 Feb. 25, 1986 Takashima 4,614,342 Sep. 30, 1986 Hagiwara 4,805,907 Feb. 21, 1989 Dote 5,221,083 Jun. 22, 1993 2 See Vegas Amusement’s Appeal Brief filed June 13, 2011 (“App. Br.”) and Reply Brief filed October 3, 2011 (“Reply Br.”) 3 Appeal No. 2012-001010 involving the ‘174 Patent was decided by the Board on December 9, 2011. The Board’s decision was subsequently affirmed on appeal to the United States Court of Appeals for the Federal Circuit in an order dated December 11, 2012. See In Re Vegas Amusement, Inc. (CAFC 2012-1279). Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 3 Levy, Douglas A. “ELECTRONIC SLOT MACHINES: New Technology Means New Games For Novices, New Profits For Casinos.” Gambling Times, Vol. 7 No. 6, pp. 42, 43, and 52-55 (1983) (“Levy”). The Rejections on Appeal The Examiner rejected claims 1-13 under 35 U.S.C. § 103(a) as unpatentable over Takashima, Sitrick, and Levy. The Examiner rejected claims 14-16 under 35 U.S.C. § 103(a) as unpatentable over Takashima, Sitrick, Levy, and Dote. The Examiner rejected claims 1-13 under 35 U.S.C. § 103(a) as unpatentable over Takashima and Hagiwara. The Examiner rejected claims 14-16 under 35 U.S.C. § 103(a) as unpatentable over Takashima, Hagiwara, and Dote. The Invention The invention is directed to a “multiplayer interactive video gaming device” for games such as video blackjack and poker. (‘512 Patent, 1:1-26.) Claims 1, 6, and 12 are independent claims. Claim 1 is representative and is reproduced below (App. Br., p. 38; Claims App’x.): 1. (original): In a multiplayer interactive video gaming machine for playing a card game in which cards are at least initially dealt at least to each player, said machine having a player portion comprising a plurality of spatially separate player stations, the improvement comprising; a single video display viewable from each of said player stations; and Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 4 a processor programmed with steps for playing said card game for displaying simultaneously upon said single video display all cards that have been initially dealt to each player; wherein cards are at least initially dealt to each player and to a dealer and wherein said processor displays simultaneously upon said single video display all cards that have been initially dealt to each player and to the dealer; and wherein said processor is programmed with steps for simulating the play of a live casino table card game and displays upon said single video display a simulation of the play of cards in said live casino table card game. B. ISSUES 1. Does the recitation in the claims of “a processor” mandate only a single processing component? 2. Has Vegas Amusement demonstrated that the prior art relied on by the Examiner does not account for the claimed “a processor”? 3. Has Vegas Amusement demonstrated error in the Examiner’s application of the prior art of record in rejecting claims 1-16? C. ANALYSIS I. Claim Construction According to Vegas Amusement, a central point of dispute in connection with the above-noted rejections emerges with respect to the term “a processor” as it appears in each of claims 1, 6, and 12. In that regard, Vegas Amusement contends that its claims should be read as requiring a “single” processor and that “all game functionality” be performed by that singular processor. (App. Br., 15: 9-11.) Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 5 We have evaluated Vegas Amusement’s contention but conclude that it is not correct. We observe that the position which is advocated by Vegas Amusement here is essentially the same as that taken in related appeal 2012- 001010 (the “‘1010 appeal”). In particular, in the ‘1010 appeal, Vegas Amusement asserted that the claim recitation of “a game processing device” required a singular processing device to the exclusion of additional such devices. Vegas Amusement based that assertion on the content of the underlying specification of the ‘174 Patent. That specification and the one of the ‘512 Patent involved in the current appeal are essentially the same. We think the analysis of the panel in the ‘1010 appeal as to the meaning of “a game processing device” appearing on pages 7-10 of that opinion provides informative guidance as to the meaning of “a processor” here.4 For largely the same reasons set forth in the ‘1010 appeal, we also think the recitation “a processor” is not limited to a singular processing component, such as a single central processing unit (“CPU”), to the exclusion of the presence of other such components. We thus reject Vegas Amusement’s arguments which are predicated on its flawed claim interpretation. II. The Prior Art Rejections The Examiner rejected: claims 1-13 over Takashima, Sitrick, and Levy; claims 1-13 under over Takashima and Hagiwara; and claims 14-16 over each of those collections of references when further considered with Dote. 4 The opinion in the ‘1010 appeal may be accessed at the following hyperlink: http://e-foia.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd2012001010-12-09-2011-1 Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 6 The rejection over Takashima, Sitrick, and Levy At the outset, even were we to assume that the claims of the ‘512 Patent be construed as requiring a single processing component performing the specified claim functions which are attributed to “a processor,” we are not persuaded the Examiner’s rejection based on Takashima, Sitrick, and Levy does not suitably account for that feature. Takashima is directed to an electronic game machine for gambling card games such as blackjack, or twenty-one. (Takashima, 1:1-14.) The Examiner pointed to “a processor 6” in Takashima as constituting the claimed processor. (Ans., 4.) Takashima discloses that its game machine incorporates “a dealer data processor 6 (CPU).” (Takashima, 2:37-40.) In connection with game play on the machine, Takashima also sets forth that the processor is “for controlling the total game and dealing the cards.” (Id.) Game content is displayed on “a dealer display 10,” which is part of a “dealer machine 2.” (Id. at 2:48-50; 4:61-68.) Thus, Takashima discloses a single central processing component as a part of dealer machine 2 that is responsible for “total game” control and game content display. In challenging the Examiner’s rejection, Vegas Amusement has pointed to separate processors 30 associated with individual player machines that are also part of Takashima’s game station. (E.g., App. Br., 25.) Takashima discloses “player machines 4,” each with an “operational unit 16” for inputting information and “coin hopper and selector 18” for paying out coins to a player. (Takashima, 3:18-21.) Takashima also describes the following (id. at 3:49-55): Further, each of the player machines 4 includes a player data processor 30 (CPU) for processing the game information from the Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 7 dealer machine 2 and the operation unit 16 so as to detect the result and control a refund or pay out of the coins, a player memory 32 for storing the game information, a player power source 34 exclusive to the player machine 4. Thus, the stated function of player data processor 30 is to process game information so as to control distribution of coins to a player. Vegas Amusement does not meaningfully explain, nor do we see, how the player processors 30 control any of the game play functions that are set forth in the claims and associated with the recited “a processor.” Vegas Amusement also does not articulate how the Examiner was mistaken in determining that the dealer data processor 6 is the component which itself performs the functions required in the claims. (Ans., 4.) Indeed, that determination is in accord with Takashima’s disclosure that the dealer data processor controls the “total game.” (Takashima, 2:38-39.) We further observe that the ‘512 Patent describes embodiments of its disclosed invention which incorporate each of a “game processor such as CPU 38” (‘512 Patent, 5:40-41) and “an interface processor such as CPU 26” (id. at 5:2-3). CPU 26 “correlates the currency information to a currency output signal” and “outputs the interface and currency output signals to a buffer device 32 for storage.” (Id. at 5:20-26.) In our view, there is marked similarity in the function of the CPU 26 of the ‘512 Patent and that of the player processor 30 in Takashima. We are not persuaded that the Examiner was incorrect in finding that Takashima accounts for the majority of the requirements of claims 1, 6, and 12. As determined by the Examiner, what Takashima lacks is “a single video display that displays both the dealer and player cards simultaneously.” Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 8 (Ans., 5:1-2.) The Examiner’s reliance on the teachings of Sitrick to account for that deficiency (id. at 5) is, in our view, well taken. Vegas Amusement takes two positions in challenging the Examiner’s reliance on Sitrick. First, Vegas Amusements contends that Sitrick “does not enable a single video display.” (E.g., App. Br., 27.) Second, Vegas Amusement argues that combining the teachings of Sitrick with Takashima “would require substantial changes in the basic principles under which Takashima was designed to operate” so as to render the two references un- combinable. (Id. at 32.) Neither position is persuasive. With respect to the enablement argument, although Vegas Amusement characterizes Sitrick’s teachings as “not very clear” (App. Br., 27:18) and “vague” (id. at 29:8), we think Vegas Amusement attempts to interject ambiguity where none exists. Sitrick discloses a video game network that is a “system of distributed video game apparatus [that] are capable of exhibiting an interactive single identity game.” (Sitrick, Abstract.) Indeed, Sitrick discloses, in no uncertain terms, that a single “master video display” may be used in lieu of separate individual player displays to display game content. (Id. at 1:30-43.) In describing an embodiment of the invention shown in Figure 2B, Sitrick also clearly and unambiguously explains how a “central display unit 1200” associated with multiple user consoles 1000 may be implemented so as to provide “a single coherent display of the global game action” and to “contain[] a video display for providing graphical illustrations of game actions.” (Id. at 4:29-47.) We have considered Vegas Amusement’s argument, but think that it has failed to appropriately account for the skill of those of ordinary skill in Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 9 the art. As reflected by Sitrick’s disclosure, the level of skill in the art is high, particularly when it comes to configuring displays for showing game content. Moreover, a person of ordinary skill in the art is also one of ordinary creativity. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Given the detailed discussion of display configurations for its video game network appearing throughout Sitrick’s disclosure, we think a person of ordinary skill and creativity in the art would have been readily able to implement a single video display into a multiplayer video gaming system. Accordingly, we reject Vegas Amusement’s assertion that Sitrick is non- enabling for a single video display. We also reject Vegas Amusement’s contention that the teachings of Sitrick and Takashima are un-combinable. The apparent basis for that contention is that the two references have something characterized as different “topology.” (E.g., App. Br., 32:1-4.) Although, as Vegas Amusements observes (e.g., id. at 30), embodiments of Takashima’s invention may incorporate individual displays for its disclosed player machines, Takashima does not limit its teachings to any one display configuration to the exclusion of other types of configurations. Sitrick provides that its invention is to foster “[m]ultiple user interaction” and provide “an interactive single identity game.” (Sitrick, 1:1-18.) In pursuing those goals, Sitrick conveys that a “master video display” may be used instead of individual displays. We think that Vegas Amusement inappropriately discounts the teaching value of Sitrick to a skilled artisan when evaluating those teachings in connection with other similar multi-user video gaming systems, such as the electronic game machine of Takashima. Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 10 After a thorough review of the record, and after due consideration of all of Vegas Amusement’s arguments, we a not persuaded of error in the Examiner’s rejections of independent claims 1, 6, and 12 based on Takashima, Sitrick, and Levy. Accordingly, we sustain the rejection. Vegas Amusement does not argue the patentability of dependent claims 2-5, 7-11, and 13 apart from the independent claims. (See App. Br., 14, fn. 1) Hence, we also sustain the rejection of claims 2-5, 7-11, and 13 over Takashima, Sitrick, and Levy. The rejection over Takashima and Hagiwara In rejecting claims 1-13 over Takashima and Hagiwara, the Examiner relied on Takashima as disclosing all the features of the claims with the exception of the required single video display showing game content to all players. (Ans. 6-8.) Hagiwara was applied to make up for the deficiency. Vegas Amusement challenges the Examiner’s reliance on Takashima in connection with this rejection in essentially the same manner as that noted above with respect to the Takashima, Sitrick, and Levy rejection. For the same reasons, we are not persuaded that Vegas Amusement is correct in its evaluation of the content of Takashima. Video Amusement additionally urges that (App. Br., 34): [T]here is no evidence that combining Takashima with Hagiwara, or substituting the single video display as taught in Hagiwara with the multiple video displays as taught in Takashima, would yield predictable results or would be ‘obvious to try’ to a person of ordinary skill in the art. We do not agree with Vegas Amusement. Hagiwara discloses a “slot machine” gaming device which incorporates a main machine and a plurality Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 11 of subordinate machines connected to the main machine. (Hagiwara, 1:37- 42.) Main machine 1 incorporates “a central processing unit (CPU) 11” and an associated “CRT display device 6.” (Id. at 2:10-18.) The display device displays game content for a game of the slot machine. (Id. at 1:67-2:2.) The subordinate machines 2a-2c are operable by players and include each of slots 8a-8c for receiving coins and coin outlets 9a-9c for distributing coins. (Id. at 2:5-9.) Although in one embodiment, machines 2a-2c each include a display monitor 7a-7c (id. at 2:2-4), those monitors are expressed as being non- essential and may be omitted (id. at 3:32-36). Vegas Amusement’s argument in disputing that the teachings of Hagiwara may be combined with the teachings of Takashima is essentially predicated on an assessment that Hagiwara being a “slot machine” game is something different from a “live casino table card game.” (App. Br. 35:25- 31.) It is true that the games disclosed in Hagiwara and Takashima are seemingly different. However, we do not discern that differing game content somehow precludes combining the teachings of those references. Hagiwara expresses that goals of its invention include “enabl[ing] the players of individual machines to have feeling of togetherness thereby to enjoy games more” and “attract[ing] more players by making games more amusing consequently to yield more profit to the installers of the slot machine.” (Hagiwara, 1:27-34.) Fulfilling those goals is accomplished in- part by providing a single video display for the multiple players of the game. Vegas Amusement does not meaningfully explain why a shared video display would not also predictably benefit other types of video gambling Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 12 game systems involving multiple users, such as the systems disclosed in Takashima, in the same manner. For the foregoing reasons, we are not persuaded that the Examiner was incorrect in rejecting claims 1-13 based on the combined teachings of Takashima and Hagiwara. Accordingly, we sustain the rejection. The rejections of claims 14-16 In addition to the reference combinations discussed above, the Examiner also relied on the teachings of Dote in rejecting claims 14-16. Vegas Amusement’s challenge to those rejections amounts simply to a contention that Dote does not make up for the alleged deficiencies urged in connection with the teachings of Takashima, Sitrick, and Hagiwara. (App. Br., 36.) For the above-discussed reasons, we are unpersuaded of error in the Examiner’s rejections of claims 1-13. We also do not discern error in the Examiner’s reliance on Dote to account for features added by claims 14-16. Hence, we sustain the rejection of claims 14-16 over Takashima, Sitrick, Levy, and Dote and also over Takashima, Hagiwara, and Dote. The Examiner’s Alternative Reasoning We observe that the Examiner’s Answer articulates additional alternative reasoning in concluding that Vegas Amusement’s involved claims are unpatentable over the prior art. In particular, the Examiner made the following assessment (Ans., 12): While the examiner does not deem that the claimed invention requires that all functionality be performed by a single processor, it is submitted that one of ordinary skill in the computer processing or video game systems art would have the requisite skill and knowledge Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 13 to configure the system to be operable using either in a single processor or over multiple processors. Thus, the Examiner also takes the view that a skilled artisan would have reasonably appreciated that a single processor may be incorporated into a video gaming system in lieu of multiple processors. We think the record before us provides suitable support for the Examiner’s view. For example, in explaining configurations of the “master controller” of its system, Sitrick sets forth the following (Sitrick, 5:15-24; 61-68): The master controller function can be separated into a single system master controller 3000, or can be partially distributed in function among the individual game apparatus. The choice is one based on design and cost restraints, and performance goals. The discussion herein regarding the master controller 3000 should therefore be interpreted in a functional rather than physical sense, with physical distribution of the function being left to the designer. --- A great deal of flexibility exists in choosing between hardware and software boundaries for functions to be performed in the game system. It should be understood that distribution of system functions is a multidimensional concept as discussed herein. Thus, not only can there be physical distribution of apparatus, but also distribution of function implementation between hardware and software embodiments. In our view, a designer balancing issues such as cost and desired performance goals, and also appreciating the flexibility known in the art in configuring hardware components, would have readily recognized that implementing a single processor component in a gaming system would have been an available and viable option. We further observe that Hagiwara’s disclosure is consistent with such a determination in that its multi-user Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 14 gaming system itself incorporates a single “CPU 11” for providing all processing functionality. (Hagiwara, 2:10-12; Fig. 2.) While Vegas Amusement submits that in 19955, a single processor could not have been implemented in Takashima’s system (App. Br., 33-34; Reply Br., 12-15), notably absent is any credible evidence tending to support that submission, such as the declaration testimony of a qualified expert. The speculative assertions of Vegas Amusement’s counsel in that regard are simply insufficient to make its case. Arguments of counsel are not a substitute for evidence that is lacking in the record. Estee Lauder Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997). For all the foregoing reasons, we are not persuaded of error in the Examiner’s rejections of Vegas Amusement’s claims 1-16 over the prior art. D. CONCLUSION 1. The recitation in the claims of “a processor” does not require only a single processing component. 2. Vegas Amusement has not demonstrated that the prior art relied on by the Examiner is insufficient to account for the claimed “a processor.” 3. Vegas Amusement has not demonstrated error in the Examiner’s application of the prior art of record in rejecting claims 1-16. 5 1995 is the year in which the parent ‘174 Patent was filed of which the ‘512 patent involved in this reexamination proceeding is ultimately a continuation. Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 15 E. ORDER The rejection of claims 1-13 under 35 U.S.C. § 103(a) as unpatentable over Takashima, Sitrick, and Levy is affirmed. The rejection of claims 14-16 under 35 U.S.C. § 103(a) as unpatentable over Takashima, Sitrick, Levy, and Dote is affirmed. The rejection of claims 1-13 under 35 U.S.C. § 103(a) as unpatentable over Takashima and Hagiwara is affirmed. The rejection of claims 14-16 under 35 U.S.C. § 103(a) as unpatentable over Takashima, Hagiwara, and Dote is affirmed. Requests for extensions of time in this ex parte reexamination proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f). AFFIRMED lb Appeal 2012-001009 Reexamination Control 90/009,737 Patent 7,575,512 16 PATENT OWNER: DERGOTIS & NOAH LLP Three Embarcadero Center Suite 410 San Francisco, CA 94111 THIRD PARTY REQUESTER: WINSTON & STRAWN LLP Patent Department 1700 K Street, NW Washington, DC 20006 Copy with citationCopy as parenthetical citation