Ex Parte Angelopoulos

Patent Trial and Appeal BoardApr 30, 2013

12547359 (P.T.A.B. Apr. 30, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ATHANASIOS ANGELOPOULOS ____________ Appeal 2011-011301 Application 12/547,359 Technology Center 3700 ____________ Before MICHAEL C. ASTORINO, BENJAMIN D. M. WOOD, and MICHELLE R. OSINSKI, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-011301 Application 12/547,359 2 STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision finally rejecting claims 1-23.1 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Claims 1, 20, and 23 are the independent claims on appeal. Claim 1, reproduced below with emphasis added, is illustrative of the subject matter on appeal. 1. A game medium including read only memory (ROM) or random access memory (RAM) configured to provide a sports video game in conjunction with a video game machine, the sports video game including video game rules, video game character parameters, and video game stadium or field parameters, the game medium having rules and parameters stored thereon and being configured to cause the video game machine to perform a method comprising: loading video game data stored by the game medium into memory for playing the video game, the video game data including one or more video game characters associated with corresponding real-life sports athletes, and one or more video game stadium or field parameters, the video game stadium or field parameters including a video game field or stadium attribute in the video game that corresponds to a real-life attribute of a real-life sports stadium or field; 1 The Amended Brief of Appellant, mailed June 23, 2011, at page 2 indicates that this appeal is related to Appeal 2011-002241 for Application 10/266,795. Appeal 2011-011301 Application 12/547,359 3 receiving an updated video game stadium or field parameter from a data server via the network including the Internet, wherein the updated video game stadium or field parameter includes data that corresponds to a real-life change in the real-life sports stadium or field attribute; changing a stadium or field parameter in the video game based on the updated video game stadium or field parameter received such that the video game stadium or field attribute more closely represents the changed real-life stadium or field attribute; and enabling a user to control the one or more video game characters using a video game controller connected to the video game machine. REJECTIONS The following Examiner’s rejections are before us for review.2 Claim 20 is rejected under 35 U.S.C. § 102(a) as anticipated by, or in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Wang (US 2002/0086733 A1, publ. Jul. 4, 2002). Claims 1-6, 8-10, 12-14, 19, 22, and 23 are rejected under 35 U.S.C. § 103(a) as unpatentable over EA Sports Madden 2002 Game Manual (Software and Documentation © 2001, Electronic Arts Inc.) (hereinafter Madden02) and Wang. Claims 7, 11, 15-18, and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Madden 2002, Wang, NFL 2K1 GameFaqs on Sega Dreamcast (Weters, Version 3.1, http://www.gamefaqs.com/console/ 2 The Examiner has withdrawn the rejection of claims 1-19 and 22 under 35 U.S.C. § 112, second paragraph, as indefinite. Ans. 3. Appeal 2011-011301 Application 12/547,359 4 dreamcast/file/914206/8841, last visited Jul. 2, 2009; Sycho Bubba Crusty, Version 2.0, http://www.gamefaqs.com/console/dreamcastlfile/914 206/8814, last visited Jul. 2, 2009; Cherone, Version 3.2, http://www.gamefaqs.com/console/dreamcast/file/914206/10283 (2 of 44)3/28/20096:28:21 AM) (hereinafter NFL 2K1), and NES Tecmo Super Bowl (Software and Documentation © 1991, Nintendo Entertainment System) (hereinafter Tecmo Super Bowl). OPINION The rejections of claim 20 as anticipated by or alternatively, as unpatentable over Wang The Examiner relies on Wang’s disclosure at paragraphs [0002], [0008], [0009], [0013], [0014], and [0026] as evidence to teach all (anticipation) or most (obviousness) of the claim limitations of claim 20. Ans. passim. Most notably, concerning stadium and field parameters Wang states at paragraph [0026]: In a preferred embodiment of the invention, the stadiums and fields on which the games are played are portrayed in three-dimensional graphics and resemble actual professional stadiums. This can be accomplished, for example, by taking digital photos of the stadiums and translating them into graphics. Of course, there are many different professional stadiums possible, such as Major League Baseball stadiums, Minor League Baseball stadiums and stadiums from professional baseball associations in countries other than the United States. Also, the stadiums can be progressively designed, where the stadiums do not resemble actual stadiums and instead provide a futuristic feel. In another aspect of the invention, advertisements from sponsors could be Appeal 2011-011301 Application 12/547,359 5 incorporated into the stadiums. For example, an advertisement could appear on a stadium facade or on an outfield wall. In the preferred embodiment, users are able to choose the stadium where the game is played from a menu. More specifically, the Examiner finds that Wang “discloses taking digital photos of stadiums, where the stadiums and fields on which the games are played are portrayed in three-dimensional graphics and resemble actual professional stadiums, and provides an example of a Major League Baseball stadium” and explains a user can upload to a server through the Internet a first digital picture of a stadium in April and a second updated digital picture in August. Ans. 17, 18-19. However, the Appellant correctly points out that Wang’s paragraph [0026] “relates to how the video game graphics are designed in the first instance.” See App. Br. 10. As such, the Examiner’s finding of a user updating the design of the digitized stadium is based on speculation. See App. Br. 13, Reply Br. 6. The Examiner also finds that Wang’s “teaching of progressively designing a stadium is not limited to only ‘futuristic’ stadiums, where as previously mentioned, the stadium may also be progressively designed according to photos taken at a later date.” Ans. 19-20. This finding is incorrect because Wang specifically states that “the stadiums do not resemble actual stadiums.” Wang para. [0026], App. Br. 10. Additionally, the Examiner determines that: One of ordinary skill in the art would recognize that the actual stadium of Wang goes through construction and other modifications over time, thus is progressively changed in real-life in order to attract more fans to the stadiums. Therefore, it would have been obvious to a person of ordinary skill in the art to modify the actual stadiums of Appeal 2011-011301 Application 12/547,359 6 Wang with the teaching of progressively designing a stadium in the video game with the modifications of the actual stadium in order to add to the real-life feel of the video game. Ans. 20. The Examiner’s determination, however, is predicated on the incorrect finding that Wang teaches progressively designing and therefore updating actual stadiums, which is incorrect as discussed above. As such, the Examiner’s determination of obviousness is also incorrect since it is based on an erroneous finding as to the scope and content of Wang. Reply Br. 7. But see Ans. 24. To the extent Wang discusses a “realistic baseball game” and “a game that simulates real-life situations” (Wang, para. [0013]) it should be recognized that these are broad statements that should be viewed in light of the specific features of the particular video game. The specifics of the stadium and field parameters of Wang’s video game are presented in paragraph [0026], which as discussed above, lacks a teaching of updating a stadium or a field parameter. See generally Reply Br. 6-9. Lastly, the Examiner finds that “Wang does disclose downloading to a computer necessary software from a web site.” Ans. 5 (citing Wang, para. [0014]). The Examiner then concludes that “it would have been obvious to one of ordinary skill in the art to modify the downloaded software from the Internet of Wang to include the actual stadiums of Wang in order to provide game players a quick and convenient way to update game data.” Id. (emphasis added). Although Wang discloses a user computer that has software to interact with an Internet website on a server to personalize and train a chosen character (Wang, paras. [0008]-[0009]) which seems similar to a protocol required to receive and change updated stadium or field parameters, the Examiner’s conclusion lacks rational underpinning because Appeal 2011-011301 Application 12/547,359 7 Wang does not teach changing a stadium or field parameter in its video game based on the received updated parameters. App. Br. 9, Reply Br. 7. Thus, the rejection of claim 20 as anticipated by, or alternatively, as unpatentable over Wang is not sustained. The rejection of claims 1-6, 8-10, 12-14, 19, 22, and 23 as unpatentable over Madden02 and Wang, and the rejection of claims 7, 11, 15-18, and 21 as unpatentable over Madden02, Wang, NFL 2K1, and Tecmo Super Bowl Madden02 discloses a game that can be played at any NFL stadium throughout the league, at various times of day and weather conditions, as well as changing the level of detail of the stadium and sideline objects (Ans. 27, 28, Madden02 p. 9, 41-42), but it does not provide sufficient disclosure of the receiving step of claims 1 and 23. See Ans. 8-9. Indeed, the Examiner finds that Madden02 teaches nearly all of the limitations in independent claims 1 and 23 (Ans. 6-7), except that it does not disclose “receiving an updated video game stadium or field parameter from a data server via the network including the Internet, wherein the updated video game stadium or field parameter corresponds to a change in the real-life sports stadium or field attribute” (Ans. 8-9 (emphasis omitted)). Additionally, although the Examiner finds otherwise, since the changing steps of claims 1 and 23 refer back to the updated video game stadium or field parameters of the receiving step, the Examiner cannot find that Madden02 teaches the full scope of the changing steps of claims 1 and 23. But see Ans. 7. To remedy these deficiencies of Madden02, with regard to the rejection of independent claims 1 and 23, the Examiner turns to the Wang’s teachings as discussed above. See Ans. 9. See also Ans. 21-32. The Examiner determines that “[t]he video game of Madden02 would have Appeal 2011-011301 Application 12/547,359 8 motivation to use the teachings of Wang in order to provide game players with power over which stadiums that they may play at for entertainment purposes” and concludes that “it would have been obvious to a person of ordinary skill in the art at the time of the invention to modify the video game of Madden02 with the teachings of Wang in order to add to the fun and excitement of playing a video sports game.” Ans. 9-10. However, for similar reasons as discussed above, the Examiner’s findings regarding Wang’s teachings concerning the receiving and changing steps of claims 1 and 23 are either speculative or incorrect. See also App. Br. 12-15; Reply Br. 6-9. As such, the Examiner’s rejection, predicated on such speculative or incorrect findings, lacks rational underpinning. Therefore, the rejection of claims 1 and 23, and claims 2-6, 8-10, 12-14, 19, and 22 dependent thereon, under 35 U.S.C. § 103(a) as unpatentable over Madden02 and Wang is not sustained. The remaining rejection based on Madden02 and Wang in combination with NFL 2K1 and Tecmo Super Bowl relies on the same speculative or incorrect findings as discussed above, and as such, the Examiner’s rejection lacks rational underpinning. As such, we cannot sustain the rejection of claims 7, 11, 15-18, and 21 under 35 U.S.C. § 103(a) as unpatentable over Madden02, Wang, NFL 2K1, and Tecmo Super Bowl. DECISION We REVERSE the rejections of claims 1-23. REVERSED Klh