Ex Parte 7575512 et al

Patent Trial and Appeal Board

Jan 18, 2013

90009737 (P.T.A.B. Jan. 18, 2013)

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.
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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).
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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

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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.)
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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
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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
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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.”
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(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
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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.
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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
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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
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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
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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
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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.
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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

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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