Ex Parte Cudak et al

Patent Trial and Appeal Board

Dec 28, 2016

13596022 (P.T.A.B. Dec. 28, 2016)

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.
13/596,022 08/27/2012 Gary D. Cudak RPS920120048US1 (154) 2649
50594 7590
CRGO LAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, EL 33487
12/30/2016 EXAMINER
HENRY, THOMAS HAYNES
ART UNIT PAPER NUMBER
3717
NOTIFICATION DATE DELIVERY MODE
12/30/2016 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GARY D. CUDAK, CHRISTOPHER J. HARDEE,
RANDALL C. HUMES, and ADAM ROBERTS
Appeal 2015-004116
Application 13/596,0221
Technology Center 3700
Before NINA L. MEDLOCK, BRUCE T. WIEDER, and
KENNETH G. SCHOPFER, Administrative Patent Judges.
SCHOPFER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35U.S.C. § 134 from the rejection of
claims 1—21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
BACKGROUND
According to Appellants, “[t]he present invention relates to
multiplayer gaming and more particularly to resource consumption in
multiplayer gaming.” Spec. 2.
1 According to Appellants, the real party in interest is International Business
Machines Corporation. Appeal Br. 2.
Appeal 2015-004116
Application 13/596,022
CLAIMS
Claims 1—21 are on appeal. Claim 1 is illustrative of the appealed
claims and recites:
1. A computer-implemented method for dynamic quality of
service (QoS) management for multi-player computer gaming,
the method comprising:
monitoring a multi-player computer game hos[t]ed by a
game server;
detecting a game moment for a game player in the multi­
player game;
determining a degree of sensitivity for the game moment;
and,
enhancing access of the game player to a computing
resource in response to determining the game moment to be
highly sensitive.
Appeal Br. 13.
REJECTIONS
1. The Examiner rejects claims 15—21 under 35 U.S.C. § 101 as
directed to non-statutory subject matter.
2. The Examiner rejects claims 1—21 under 35 U.S.C. § 102(b) as
anticipated by Anschutz.2
3. The Examiner rejects claims 3,4, 10, 11, 17, and 18 under
35 U.S.C. § 103(a) as unpatentable over Anschutz.
2 Anschutz et al., US 2004/0230695 Al, pub. Nov. 18, 2004.
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Appeal 2015-004116
Application 13/596,022
DISCUSSION
Rejection under 35 U.S.C. § 101
The Examiner rejects claims 15—21 because “a computer program
product is non-statutory subject matter. Computer program products must
be positively clamed [sic] to reside on a non-transitory computer readable
medium.” Final Act. 2.
Appellants argue that the Specification definitively states that a
computer readable storage medium, as claimed, is distinct from a computer
readable signal medium such that computer readable storage medium does
not include signals per se. Appeal Br. 4—9. However, we agree with the
Examiner that the exemplary nature of the descriptions in the Specification
does not provide a sufficiently clear exclusion of transitory media from the
scope of the term “computer readable storage medium.” See Ans. 2—3; see
also Ex parte Mewherter, 107 USPQ2d 1857, 1862, 2013 WL 4477509 at *3
(PTAB 2013) (precedential). In this matter, we are also guided by our
reviewing court which has stated “during patent prosecution when claims
can be amended, ambiguities should be recognized, scope and breadth of
language explored, and clarification imposed. . . . [T]his way . . .
uncertainties of claim scope [can] be removed, as much as possible, during
the administrative process.” In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir.
1989). Thus, if Appellants wish to limit the claims to more clearly exclude
transitory media, the more appropriate procedure for doing so while
prosecution is open is through an amendment to the claims.
For these reasons, we sustain the rejection of claims 15—21 under
35 U.S.C. § 101.
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Appeal 2015-004116
Application 13/596,022
Art Rejections
With respect to each of the independent claims, the Examiner finds
that Anschutz discloses each limitation of the claims. Final Act. 2—3.
Appellants argue that the Examiner has not adequately shown how Anschutz
discloses the limitation “enhancing access of the game player to a computing
resource in response to determining the game moment to be highly
sensitive.” Appeal Br. 9—12.
We are persuaded by Appellants’ arguments. In the rejection, the
Examiner finds that Anschutz discloses detecting a degree of sensitivity for a
game moment by determining higher priority game events (Anschutz
581—582) and enhancing access as claimed by giving higher priority
events a lower reconciliation time. Final Act. 3. However, although
Anschutz does disclose establishing the priority for a game event (1 582),
Anschutz only discloses that reconciliation time is adjusted based on server
capacity and load (1 579). See Appeal Br. 10. Thus, the Examiner’s finding
is not supported on the record before us.
In the Answer, the Examiner further explains that “enhancing access
to a computer resource” is equivalent to Anschutz’s teaching of using and
setting multiple diffserve code-points related to treating higher priority
events. Ans. 3^4. However, we find that the Examiner has not adequately
explained how this meets the claim language at issue, particularly because,
as noted by Appellants, Anschutz’s use of multiple diffserve code-points
relates to “the application” as a whole and not necessarily the access for a
particular game player, as required by the claim. See Reply Br. 6—8.
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Appeal 2015-004116
Application 13/596,022
For these reasons, we do not sustain the rejection of independent
claims 1, 8, and 15 as anticipated by Anschutz. For the same reasons, we do
not sustain the rejections of any of dependent claims 2—7, 9—14, and 16—21.
CONCLUSION
For the reasons set forth above, we AFFIRM the rejection of
claims 15—21 as directed to non-statutory subject matter, and we REVERSE
the rejections of claims 1—21 as anticipated or obvious.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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