Ex Parte Hyndman et al

Patent Trial and Appeal Board

Aug 10, 2017

12344542 (P.T.A.B. Aug. 10, 2017)

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.
12/344,542 12/28/2008 Arn Hyndman 909593-US-NP/AVA222PA 6324
136582 7590 08/14/2017
STEVENS & SHOWALTER, LLP
Box AVAYA Inc.
7019 Corporate Way
Dayton, OH 45459-4238
EXAMINER
MOSSER, ROBERT E
ART UNIT PAPER NUMBER
3714
NOTIFICATION DATE DELIVERY MODE
08/14/2017 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):
pto @ sspatlaw. com
pair_avaya@ firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARN HYNDMAN, ANDREW LIPPMAN, and
NICHOLAS SAURIOL
Appeal 2016-006444
Application 12/344,542
Technology Center 3700
Before MICHAEL L. WOODS, AMANDA F. WIEKER, and
FREDERICK C. LANEY, Administrative Patent Judges.
WOODS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Am Hyndman et al. (“Appellants”) appeal under 35 U.S.C. § 134
from the Examiner’s decision rejecting claims 1, 4, 5, 9—11, and 21—28. Br.
1. We have jurisdiction over this appeal under 35 U.S.C. § 6(b).
SUMMARY OF THE DECISION
We AFFIRM.
Appeal 2016-006444
Application 12/344,542
CLAIMED SUBJECT MATTER
Appellants’ invention relates to “implementing realistic audio
communications in a three dimensional computer-generated virtual
environment.” Spec. 12. Claims 1 and 22 are independent. Br. 16—19
(Claims App.). We reproduce claim 1, below, with emphases added to
particular limitations at issue in this appeal.
1. A method of selectively enabling audio to be
transmitted between users of a three dimensional computer­
generated virtual environment, the method comprising the steps
of:
determining a position of a first Avatar in the virtual
environment;
determining an orientation of the first Avatar in the virtual
environment to determine which way the first Avatar is facing in
the virtual environment;
defining an elliptical audio dispersion envelope for the
first Avatar based on the position of the first Avatar and having
a major ellipse axis oriented according to the orientation of the
first Avatar, the elliptical audio dispersion envelope providing
for elliptical sound volume fall-off on a linear distance basis; and
adjusting the elliptical audio dispersion envelope based on
obstacles within the virtual environment, the obstacles creating
sound shadows on the profile to reduce the distance of the profile
in a particular direction associated with the location of the
obstacles relative to the first Avatar;
wherein if a second Avatar is located within the audio
dispersion envelope then audio from the user associated with the
second Avatar will be included in the mixed audio stream for the
first user, and the volume of the audio from the user associated
with the second Avatar will be based on the linear distance from
the second Avatar to the first Avatar between the Avatars and the
elliptical sound volume fall-off rate, and wherein if the second
Avatar is located outside the audio dispersion envelope, then
audio from the user associated with the second Avatar will not
be included in the mixed audio stream for the first user, the audio
2
Appeal 2016-006444
Application 12/344,542
dispersion envelope being a virtual sound range within the three
dimensional virtual environment for the first Avatar;
wherein the virtual sound range represented by the audio
dispersion envelope for the first Avatar is directly controllable
by the first user associated with the first Avatar via interaction
with a mouse wheel.
Br. 16 (Claims App.).
THE REJECTIONS
I. Claims 1, 4, 5, 9-11, and 21—28 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Smith (US 2006/0025216 Al, published Feb.
2, 2006), Bemdt (US 2008/0252637 Al, published Oct. 16, 2008), and
Edelson (US 6,504,926 Bl, issued Jan. 7, 2003).1 Final Act. 3.
II. Claims 1, 4, 5, 9—11, and 21—28 stand rejected under 35 U.S.C.
§ 101 as directed to non-statutory subject matter.2 Ans. 2.
1 Although Rejection I also lists claim 20, we note that claim 20 is cancelled,
and its inclusion in the list of rejected claims appears to be an inadvertent
and harmless typographical error. Compare Br. 17 (Claims App.), with
Final Act. 3, and Ans. 5.
2 Although the Final Office Action does not list Rejection II (see Final Act.
2—16), Appellants, nevertheless, appeal the rejection in its Appeal Brief (Br.
8—12), presumably with the understanding that the rejection remains
pending. In the Answer, the Examiner notes the omission and presents
Rejection II in its paper. See Ans. 2-4, 13 (“The rejection of claims under
35 U.S.C. § 101 has been updated.”). We find that the Examiner’s omission
of Rejection II in the Final Office Action was an inadvertent and harmless
error, as Appellants contested the rejection in their Appeal Brief.
3
Appeal 2016-006444
Application 12/344,542
ANALYSIS
Rejection I: Claims 1, 4, 5, 9—11, and 21—28 as Unpatentable
Over Smith, Berndt, and Edelson
Appellants contest the rejection of claims 1, 4, 5, 9—11, and 21—28
collectively. See Br. 12—15. In accordance with 37 C.F.R. § 41.37(c)(l)(iv),
we select claim 1 as the representative claim to decide the appeal of the
rejection, with claims 4, 5, 9-11, and 21—28 standing or falling with claim 1.
Examiner’s Rejection of Claim 1
In rejecting claim 1, the Examiner relies on Smith for teaching several
of the claimed steps. See Final Act. 4—5. To help illustrate these findings,
we reproduce Figure 1 of Smith, below:
PL AYESC
/
///
raverIs
I
\
\
\
/
\
\\
\X
\
\\ \
///
/
/
Figure 1 ______
Figure 1, reproduced above, depicts “virtual distance ranging based on
detected speech amplitude.” Smith 114. In citing Figure 1, the Examiner
finds that Smith teaches the steps of:
4
Appeal 2016-006444
Application 12/344,542
(1) “determining a position of a first Avatar” (Final Act. 4 (citing
Smith Fig. 1,H10, 11, 19, 24));
(2) “determining an orientation of the first Avatar ... to
determine which way the first Avatar is facing” (id. (citing
Smith Fig. 1,11 12, 30, 40));
(3) “defining an audio dispersion envelope for the first Avatar
based on the position of the first Avatar providing for sound
volume falling off on a distance basis” (id. (citing Smith Fig.
1,118));
(4) “adjusting the audio dispersion envelope based on obstacles .
. . the obstacles creating sound shadows” (id. (citing Smith
1119, 43));
(5) “defining an audio dispersion envelope for the first Avatar
. . . such that if [a] second Avatar is located within the audio
dispersion envelope then audio from the user associated with
the second Avatar will be included in the mixed audio stream
for the first user” (id. at 4—5 (citing Smith Fig. 1, H 10, 12,
18, 19)); and
(6) “wherein the audio dispersion envelope for the first Avatar is
controllable by the first user” (id. at 5 (citing Smith Abstr.,
Fig. 1,H12, 18, 19, 23)).
With regards to the claimed limitation requiring that the “audio
dispersion envelope” is “elliptical,” the Examiner acknowledges that Smith’s
envelopes are “represented as a plurality of circular envelopes” and that
“Smith is silent regarding the use of envelopes being defined as envelopes
with a major ellipse axis . . . and the elliptical sound volume falling off on a
linear . . . basis.” Final Act. 5. To address this shortcoming, the Examiner
relies on Bemdf s teachings regarding elliptical audio ranges and submits
that it would have been obvious to modify Smith to use elliptical envelopes.
See id. (citing Bemdt Figs. 6, 7, H 48, 51, 52, 56, 57). To help illustrate the
Examiner’s findings with respect to Bemdt, we reproduce Figure 6 of
Bemdt, below:
5
Appeal 2016-006444
Application 12/344,542
FIG, 6
Figure 6, reproduced above, “illustrates the use of an audio range to
perform additional attenuation of sound in a virtual reality environment. . .
[and that a]udio ranges of the avatars at locations Pv and P, are indicated by
ellipses Ex andEy.” Bemdt 148 (emphasis added). Bemdt also discloses
that “the user’s audio range can be dynamically adjusted . . . [and] may be
realized by reducing the audio range.” Id. 1 51.
In combining Smith with Bemdt, the Examiner reasons that
[it] would have been obvious to one of ordinary skill in the art at
the time of invention to have utilized an elliptical envelope with
a major ellipse axis oriented according to the orientation of the
first Avatar and the elliptical sound volume falling off on a linear
distance basis as taught by Brendt [sic] in the prior art of Smith
in order to utilize a model of audio transmission with Avatars
that better simulates the real life and further gives the operator
greater ability to direct their voice communication to intended
avatars in game.
Final Act. 5 (emphasis added).
Concerning the claimed limitation requiring the “sound range
represented by the audio dispersion envelope ... [to be] directly controllable
6
Appeal 2016-006444
Application 12/344,542
by the first user . . . via interaction with a mouse wheel,” the Examiner
acknowledges that Smith and Bemdt do not teach this limitation, and asserts
that Edelson teaches the use of a computer mouse to adjust microphone
sensitivity. Final Act. 6 (citing Edelson, 3:39-58). The cited excerpt of
Edelson discloses that microphone sensitivity can be adjusted incrementally
with control software in response to input signals from a mouse. Edelson,
3:39—58. Based on this teaching, and in further combining Edelson with
Smith and Bemdt, the Examiner reasons that:
[i]t would have been obvious to one of ordinary skill in the art to
have incorporated the use of a mouse as taught by Edelson and
including a mouse wheel for modifying the sensitivity of the
microphone of Smith and modify the audio dispersion envelope
associated with the detected user volume as presented by Smith,
in order to offer users the ability to calibrate the microphone
input to their desired speech and listening level.
Final Act. 6 (emphasis added).
Appellants’ Arguments
Contesting the rejection of claim 1, Appellants argue that the
Examiner erred in that:
the cited combination of references does not teach or suggest a
method of selectively enabling audio to be transmitted between
users of a three dimensional computer-generated virtual
environment, in which a virtual sound range represented by an
audio dispersion envelope for the first Avatar is directly
controllable by the first user associated with the first Avatar via
interaction with a mouse wheel.
Br. 12. In support of its argument, Appellants present multiple sub­
arguments, which we address separately, below.
7
Appeal 2016-006444
Application 12/344,542
Our Analysis
First, Appellants assert that “Edelson is focused on the issue of
correctly capturing audio .... It does not deal with the problem of
controlling who the user listens to in a virtual environment.” Br. 13.
Appellants point out that “the mouse wheel in claim 1 is not being used to
control the volume of the audio, as is done in Edelson, but rather the mouse
wheel is used to control the audio dispersion envelope for the first Avatar.”
Id. at 14.
Although Appellants are correct in that Edelson discloses the use of a
mouse wheel to control the volume of the audio, rather than the audio
dispersion envelope for an avatar, Appellants’ argument is not responsive to
the proposed ground of rejection. As explained correctly by the Examiner,
nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. Ans. 18 (citations omitted); In re Merck & Co., Inc., 800 F.2d
1091, 1097 (Fed. Cir. 1986). As explained above, the Examiner does not
rely on Edelson for teaching the use of a mouse wheel for controlling the
audio dispersion envelope for an avatar. See Final Act. 6. Rather, the
Examiner relies on Edelson’s teaching of “a mouse wheel for modifying the
sensitivity of the microphone.” Id. (citing Edelson, 3:39—58). In combining
Edelson with Smith and Bemdt, the Examiner reasons that it would have
been obvious to incorporate the use of the mouse “in order to offer users the
ability to calibrate the microphone input to their desired speech and listening
lever (Final Act. 6 (emphasis added)) and “to control audio properties
when engaging in computer based audio communication” (Ans. 18
(emphasis added)). We further determine that the Examiner has articulated
8
Appeal 2016-006444
Application 12/344,542
reasoning for the alleged combination that is adequately supported by
rational underpinnings. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (“there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness”).
Second, Appellants argue that “Smith is focused on taking into
account the physical properties of the environment in terms of modifying the
sound[, which] is prohibitively difficult.” Br. 13. Appellants further assert,
“Applicants!”] system, by contrast, is different in that it adopts a simplified
model of elliptical fall-off and sound shadows that sufficiently approximates
the real world at lower computational cost.” Id.
Appellants’ second argument is not persuasive. As explained above,
nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures. See Merck, 800 F.2d at 1097. Here, the Examiner does not rely
on Smith for disclosing an elliptical audio dispersion envelope, and instead
acknowledges that Smith’s audio dispersion envelopes are circular. See
Final Act. 5 (finding that Smith’s audio dispersion envelopes are
“represented as a plurality of circular envelopes”). Rather, the Examiner
relies on Bemdt’s teaching of elliptical audio ranges and reasons that it
would have been obvious to modify Smith to use elliptical audio dispersion
envelopes “in order to utilize a model of audio transmission with Avatars
that better simulates the real life and further gives the operator greater ability
to direct their voice communication to intended avatars in game.” Final Act.
5 (citing in part Bemdt Fig. 6,148). We further determine that the Examiner
9
Appeal 2016-006444
Application 12/344,542
has articulated reasoning for the alleged combination that is adequately
supported by rational underpinnings. Kahn, 441 F.3d at 988.
Third, Appellants argue that “Brendt [sic] does not teach or suggest
direct user controlled sound range, i.e. [,] who the user will listen to in the
virtual environment, and does not teach applicant’s proposed elliptical
dispersion with sound shadows.” Br. 13 (emphasis added).
Appellants’ third argument is not persuasive for the same reason that
Appellants’ first two arguments are not persuasive; nonobviousness cannot
be established by attacking the references individually when the rejection is
predicated upon a combination of prior art disclosures. See Merck, 800 F.2d
at 1097. Here, the Examiner does not rely on Bemdt for teaching “elliptical
dispersion with sound shadows.” See Final Act. 5. Rather, the Examiner
relies on Smith’s teaching of “adjusting the audio dispersion envelope based
on obstacles ... the obstacles creating sound shadows.” Id. at 4.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 1, and claims 4, 5, 9-11, and 21—28, which fall with claim 1,
and sustain the rejection of these claims under 35 U.S.C. § 103(a) as
unpatentable over Edelson, Bemdt, and Smith. We concur with the
conclusions reached by the Examiner, and adopt as our own: (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken; and (2) the reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellants’ Brief.
10
Appeal 2016-006444
Application 12/344,542
Rejection II: Claims 1, 4, 5, 9—11, and 21—28
as Directed to Non-Statutory Subject Matter
Examiner’s Rejection
The Examiner rejects claims 1, 4, 5, 9-11, and 21—28 under 35 U.S.C.
§ 101 as directed to non-statutory subject matter. Ans. 2. In particular, the
Examiner finds that the claims “are directed to the abstract idea of
organizing a human activity through a plurality of steps for managing sound
dispersion between users and that is similar to the concepts that courtjsj
have previously found abstract.” Id. (emphases added). More specifically,
the Examiner finds that the claimed invention is simply “organizing the
human activity of one human communicating with another human.” Id. at
15. The Examiner explains, “organizing human activity include[s] both
concepts relating to managing relationships or transactions between people,
and concepts relating to managing human behavior.” Id.
The Examiner cites to the following cases as being similar to the
claimed subject matter before us {id. at 2—3):
(1) “Storing preselected numbers for use in games of Bingo.” Id.
(citing Planet Bingo, LLCv. VKGSLLC, 576 Fed. Appx. 1005
(Fed. Cir. 2014));
(2) “Formulation and trading of risk management contracts.” Id.
(citingAlice Corp. Pty. Ltd. v. CLSBanklnt’l, 134 S. Ct. 2347
(2014));
(3) “Visibility Calculations for 3D Computer Graphics.” Id. at 3
(citing Fuzzysharp Tech. Inc. v. Intel Corp., 595 Fed.Appx.
996 (Fed. Cir. 2015) (affirmed under Fed. Cir. R. 36)).
Appellants’ Argument
Contesting the rejection, Appellants argue that the claims do not recite
“an abstract idea of organizing human activity,” referencing the USPTO’s
own guidance regarding subject matter eligibility. Br. 9.
11
Appeal 2016-006444
Application 12/344,542
Our Analysis
The specification describes the invention as relating to “implementing
realistic audio communications in a three dimensional computer-generated
virtual environment.” Spec. 12. Further, the claims recite the steps of
“adjusting [an] elliptical audio dispersion envelope based on obstacles” and
“control[ing the envelope] . . . with a mouse wheel” to enable audio
communication between avatars in a virtual environment. See Br. 16—19
(Claims App.). Accordingly, the claimed subject matter is directed to
controlling the dispersion of audio from one avatar to another, and the
precise issue before us is whether this subject matter is an abstract idea.
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted § 101
to include an implicit exception: “laws of nature, natural phenomena, and
abstract ideas'1'’ are not patentable. See, e.g., Alice, 134 S. Ct. at 2354
(internal quotation and citation omitted, emphasis added). In analyzing
patent eligibility questions under 35 U.S.C. § 101, the Supreme Court
instructs us to “first determine whether the claims at issue are directed to a
patent-ineligible concept.” Id. at 2355. Alice provides several broad
examples of what might constitute an abstract idea, including: (1)
fundamental economic practices; (2) certain methods of organizing human
activities; (3) an idea of itself; and (4) mathematical relationships or
formulae. See id. at 2350, 2356.
In support of the rejection, the Examiner references three cases—Alice
Planet Bingo, and Fuzzysharp—in which the court found the subject matter
to be abstract. Ans. 2—3. The Examiner submits that the subject matter of
12
Appeal 2016-006444
Application 12/344,542
these three cases is similar in concept to the subject matter of Appellants’
claimed invention. See id. We address each of these cases, below.
In Planet Bingo, the Federal Circuit determined that the claims related
to “managing a bingo game while allowing a player to repeatedly play the
same sets of numbers in multiple sessions.” Planet Bingo, 576 Fed.Appx. at
1007. The Federal Circuit held that the claims were directed to solving a
tampering problem and minimizing security risks during bingo ticket
purchases. Id. at 1008. Although the Federal Circuit held that the claims
were “not drawn to the same subject matter at issue in Bilski and Alice,” the
Federal Circuit held that the claimed subject matter was “similar to the
abstract ideas of ‘risk hedging’ during ‘consumer transactions’ [of Bilski]
and ‘mitigating settlement risk’ in ‘financial transactions’ [of Alice].” See
id. (citing Bilski v. Kappos, 561 U.S. 593, 611—612 (2010) and Alice, 134 S.
Ct. at 2356—57 (emphases added)). Accordingly, the Federal Circuit held
that Planet Bingo’s claims, which involved minimizing risk, were directed to
an abstract idea. See id.
In Fuzzysharp, the district court found that the patent related to “an
improved method for performing visibility calculations” in 3-dimensional
(“3-D”) graphics. Fuzzysharp Tech. Inc., v. Intel Corp., 12-CV-04413 YGR,
2013 WL 5955668, at *10 (N.D. Cal. Nov. 7, 2013). The court determined
that the claimed methods “shorten the calculations by identifying the parts of
the surfaces in a 3-D representation that are always visible or always
invisible from a set of viewpoints, and then skipping the calculations for that
part in further rendering of the image.” Id. The court further determined
that the claimed method has three components:
13
Appeal 2016-006444
Application 12/344,542
(1) [Mathematical manipulations of data, such as “identifying,”
“comparing,” or “determining;”
(2) a reducing step (“ignoring” or “exempting” or “skipping”
data or calculations); and
(3) an indication of where these steps fit into the visibility
computations.
Id. at * 11. In referencing the Supreme Court’s decisions in Flook and Mayo,
the court held that the claims were abstract as being “drawn to a
mathematical formula and merely append conventional activity, which
cannot supply the ‘particular application’ needed to impart patentability.”
See id. at *12 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 81—82 (2012) (referencing Parker v. Flook, 437 U.S. 584
(1978))) (emphasis added).
In the present case, and contrary to the Examiner’s findings (Ans. 2—
3), we do not see how the claims before us are similar to those in Alice,
Planet Bingo, or Fuzzysharp. In particular, the claimed subject matter does
not involve any risk mitigation, like those found by the Federal Circuit in
Alice and Planet Bingo. See Planet Bingo, 576 Fed.Appx. at 1008.
Furthermore, the claimed subject matter does not relate to a mathematical
formula, like that found in Fuzzysharp. See Fuzzysharp, 2013 WF 5955668
at *12. Instead, the claims before us relate to controlling the dispersion of
audio from one avatar to another. We do not see how this subject matter is
abstract based on the case law cited by the Examiner. See Ans. 15.
Furthermore, the USPTO publishes a non-limiting list of abstract
ideas, which we reproduce (without case citations), below:
(1) [Mjitigating settlement risk . . . ;
(2) [H] edging . . . ;
(3) [Cjreating a contractual relationship . . . ;
(4) [Ujsing advertising as an exchange or currency . . . ;
14
Appeal 2016-006444
Application 12/344,542
(5) [Processing information through a clearinghouse . . . ;
(6) [Cjomparing new and stored information and using rules to
identify options . . . ;
(7) [Ujsing categories to organize, store and transmit
information . . . ;
(8) [Organizing information through mathematical correlations
• • • ?
(9) [Mjanaging a game of bingo . . . ;
(10) [T]he Arrhenius equation for calculating the cure time of
rubber . . . ;
(11) [A] formula for updating alarm limits . . . ;
(12) [A] mathematical formula relating to standing wave
phenomena . . . ; and
(13) [A] mathematical procedure for converting one form of
numerical representation to another ....
2014 Interim Guidance on Patent Subject Matter Eligibility, 79 Fed. Reg.
74618, 74622 (Dec. 16, 2014). Although the USPTO’s list is non-
exhaustive, we find nothing in the list that supports the Examiner’s finding
that the claims before us—that relate to controlling the dispersion of audio
from one avatar to another—are abstract. Ans. 15.
For the foregoing reasons, we are not persuaded that the subject
matter of claims 1, 4, 5, 9-11, and 21—28 are abstract. Thus, we conclude
that the Examiner did not establish by a preponderance of the evidence that
claims 1, 4, 5, 9-11, and 21—28 are unpatentable under 35 U.S.C. § 101.
DECISION
The rejection of claims 1, 4, 5, 9-11, and 21—28 under 35 U.S.C.
§ 103(a), as unpatentable over Smith, Bemdt, and Edelson is affirmed.
The rejection of claims 1, 4, 5, 9-11, and 21—28 under 35 U.S.C.
§ 101 is reversed.
15
Appeal 2016-006444
Application 12/344,542
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
16