Ex Parte Koster et al

Patent Trial and Appeal Board

Mar 29, 2017

11898863 (P.T.A.B. Mar. 29, 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.
11/898,863 09/17/2007 Raph Koster 071841-0362439 4076
909 7590 03/31/2017
Pillsbury Winthrop Shaw Pittman, LLP
PO Box 10500
McLean, VA 22102
EXAMINER
HUR, ECE
ART UNIT PAPER NUMBER
2172
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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):
docket_ip@pillsburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAPH KOSTER, SEAN RILEY, and
THOR ALEXANDER
Appeal 2014-002652
Application 11/898,8631
Technology Center 2100
Before CARL W. WHITEHEAD JR., J. JOHN LEE, and
SHARON FENICK, Administrative Patent Judges.
FENICK, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Non-
Final Rejection of claims 1—17, 19, and 20. Claim 18 is cancelled. (Appeal
Br. 2.) We have jurisdiction under 35 U.S.C. § 6(b)(1).
We affirm.
Invention
Appellants’ invention relates to providing virtual spaces to users, and
to differentiating virtual spaces from each other. (Spec. Tflf 1, 4—5, Abstract.)
1 Appellants identify Crescendo Venture Management, LLC. as the real
party in interest. (Appeal Br. 2.)
Appeal 2014-002652
Application 11/898,863
Exemplary Claims
Claims 1 and 9, reproduced below with certain limitations italicized
for emphasis, are exemplary:
1. A system configured to provide a virtual space that is
accessible to a user, the system comprising:
a server having a one or more physical processors
configured to execute an instance of the virtual space, wherein
the virtual space is a simulated physical space that has a
topography, expresses real-time interaction by the user, and
includes one or more objects positioned within the topography
that are capable of experiencing locomotion within the
topography, the virtual space further including a plurality of
places that includes a first place and a second place,
wherein the first place and the second place are
each defined by spatial boundaries,
wherein the first place is expressed in the instance
of the virtual space according to a first set ofparameters,
wherein the second place is expressed in the
instance of the virtual space according to a second set of
parameters,
wherein the first set ofparameters includes a first
parameter that is different from the parameters included in the
second set of parameters,
wherein the first parameter is a rate at which time
passes, dimensionality of objects within the virtual space,
permissible views of the virtual space, or a game parameter,
and wherein the one or more processors of the
server are further configured to implement the instance of the
virtual space (i) to determine a view of the virtual space
according to a set of parameters of a place from the plurality of
places that is currently being viewed and (ii) to determine view
information that describes the determined view; and
a client device in operative communication with
the server, wherein the client device comprises one or more
processors configured to receive the view information from the
server, and to present the view of the virtual space for viewing
by the user based on the view information.
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Application 11/898,863
9. A system capable of executing an instance of a virtual
space for access by a user, the system comprising:
one or more processors configured to execute computer
program modules, the computer program modules comprising:
an instantiation module that executes the instance
of the virtual space, wherein the virtual space is a simulated
physical space that has a topography, expresses real-time
interaction by the user, and includes one or more objects
positioned within the topography that are capable of
experiencing locomotion within the topography, the virtual
space further including a hierarchy of acoustic areas having
one or more subordinate acoustic areas that are contained
within a superior acoustic area in the hierarchy, wherein the
individual acoustic areas are defined spatially within the
instance of the virtual space by boundaries, wherein the volume
level of sound associated with a sound source in the virtual
space that is audible at a given location within the instance of
the virtual space is, at least in part, a function of one or more
parameters associated with one or more acoustic areas having
boundaries between the sound source and in which the given
location, wherein the instantiation module is configured such
that the boundaries and/or the parameters of at least one of the
acoustic areas is located that are adjustable by the user
independent from parameters and boundaries associated with
other acoustic areas; and
a view module that implements the executed
instance of the virtual space to determine a view of the virtual
space, and to determine view information that describes the
determined view, wherein the view information includes visual
information that describes the visual aspects of the view and
sound information that describes sound that is audible in the
view, wherein sound that is audible in the view is determined
by the view module based, at least in part, on a location
associated with the view within one or more of the acoustic
areas included in the hierarchy of acoustic areas and the
locations of sound sources associated with sounds that are
audible at the location associated with the view.
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Application 11/898,863
Rejections
The Examiner rejects claims 9-17, 19, and 20 under 35 U.S.C. § 112,
second paragraph, as indefinite. (Non-Final Action 10-11.)
The Examiner provisionally rejects claims 1—17, 19, and 20 on the
ground of nonstatutory obviousness-type double patenting as not patentably
distinct from claims 1—44 of copending application 11 /898,864. (Non-Final
Action 4—10.)
The Examiner rejects claims 1—4 and 5—8 under 35 U.S.C. § 103(a) as
unpatentable over Leahy et al. (“Leahy”) (US 2007/0050716 Al; pub. Mar.
1, 2007) and French et al. (“French”) (US 2006/0211462 Al; pub. Sep. 21,
2006). (Non-Final Action 12—17.)
The Examiner rejects claims 9-17, 19, and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Leahy and Suzuki et al. (“Suzuki”) (US
5,736,982; iss. Apr. 7, 1998). (Non-Final Action 17—28).
Issues
(A) Did the Examiner err in finding that the term “and/or”
renders claims indefinite as failing to define the boundaries
of the subject matter being claimed?
(B) Did the Examiner err in finding that Leahy, in combination
with French, teaches or suggests a virtual space including a
first place and a second place, expressed according to a first
set of parameters and a second set of parameters,
respectively, “wherein the first set of parameters includes a
first parameter that is different from the parameters included
in the second set of parameters,” as recited in claim 1?
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(C) Did the Examiner err in finding that the combination of
Leahy and French, teaches or suggests that a first parameter,
from a first set of parameters, “is a rate at which time
passes, dimensionality of objects within the virtual space,
permissible views of the virtual space, or a game
parameter,” as recited in claim 1 ?
(D) Did the Examiner err in finding that Suzuki, in combination
with Leahy, teaches or suggests “the virtual space further
including a hierarchy of acoustic areas having one or more
subordinate acoustic areas that are contained within a
superior acoustic area in the hierarchy” and “the boundaries
and/or the parameters of at least one of the acoustic areas
... are adjustable by the user independent from the
parameters and boundaries associated with other acoustic
areas” as recited in claim 9?
ANALYSIS
As an initial matter, we note that Appellants do not argue the double
patenting rejection. (Appeal Br. 7 n.l.) Thus, we summarily affirm the
double patenting rejection of claims 1—17, 19, and 20. See Manual of Patent
Examining Procedure (MPEP) § 1205.02, 9th ed., Rev. 11, 2013 (Nov.
2015) (“If a ground of rejection stated by the examiner is not addressed in
the appellant’s brief, appellant has waived any challenge to that ground of
rejection and the Board may summarily sustain it”).
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(A) Rejections under 35 U.S.C. § 112, second paragraph
Claim 9 recites, “the instantiation module is configured such that the
boundaries and/or the parameters of at least one of the acoustic areas is
located that are adjustable by the user independent from parameters and
boundaries associated with other acoustic areas.” With respect to the use of
the term “and/or” in this claim, the Examiner finds that the use of the term
renders the claim indefinite. (Non-Final Action 10—11; Answer 4.)
Appellants argue the use of “and/or” does not make the scope of the claims
unclear, and that one of ordinary skill in the art would give this term its plain
meaning. (Appeal Br. 7—9.)
“[CJlaims must have a clear and definite meaning when construed in
light of the complete patent document.” Miles Labs., Inc. v. Shandon Inc.,
997 F.2d 870, 874—75 (Fed. Cir. 1993) (citation omitted.) The test for
definiteness under 35 U.S.C. § 112, second paragraph requires that claims be
“cast in clear — as opposed to ambiguous, vague, indefinite — terms.” In re
Packard, 751 F.3d 1307, 1313 (Fed. Cir. 2014).
We agree with Appellants (Appeal Br. 7—9; Reply Br. 4—5) that the
term “and/or” is well known as having a plain meaning of “inclusive or,”
that one skilled in the art would understand what is claimed, and, thus, that
the use of this claim term does not render the scope of the claims unclear.
Accordingly, we do not sustain the Examiner’s indefmiteness
rejection of claim 9, or of dependent claims 10-17, 19, and 20.
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(B) Obviousness Rejection — Claim 1
“virtual space . . . includes a first place and a second place ” “wherein the
first place is expressed. . . according to a first set of parameters ” “wherein
the second place is expressed. . . according to a second set ofparameters ”
and “wherein the first set ofparameters includes a first parameter that is
different from the parameters included in the second set ofparameters ”
The Examiner finds that the combination of Leahy and French teaches
or suggests the limitations of claim 1, including teaching or suggesting
places in virtual space expressed according to respective sets of parameters,
with a first set of parameters for a first place including a first parameter that
is different from the parameters included in a second set of parameters for a
second place. (Non-Final Action 12—14; Answer 3^4.) Specifically, the
Examiner finds that Leahy teaches a virtual space with a plurality of rooms,
each room including users, and containing divided cells. (Non-Final Action
12—13, citing Leahy || 18, 19, 113.)
Appellants argue that Leahy only discloses “affecting the view to a
user based on the individual user’s client computing platforms used by the
user to access the virtual space” and that no parameters exist which “define a
room within a virtual space to users generally.” (Appeal Br. 11 (citing
Leahy 119).) Initially, we note that while Appellants address only the
teachings of Leahy at paragraph 19, the Examiner cites additional
paragraphs which are not addressed by Appellants. (Non-Final Action 12—
13.)
Leahy discloses “a virtual world of several rooms and connecting
hallways as indicated in a world map panel,” (119) in which “[e]ach user is
free to move his or her avatar around” (118), where each room is
periodically examined, with each user’s current location being established
and a list of the closest neighbors to the user is determined (1113), and a
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user is notified of nearby users (119). Leahy’s virtual space, thus, includes
places in virtual space that differ from each other, and views to a user are
not, as Appellant argues, based only a user’s computing platform. We agree
with the Examiner that Leahy teaches or suggests the disputed limitations,
including a virtual space having a first and second place (Leahy’s rooms)
and the expression of places according to parameters that differ from each
other, such as, e.g., the presence of other user’s avatars in specific rooms.
(C) Obviousness Rejection — Claim 1
“the first parameter is a rate at which time passes,
dimensionality of objects within the virtual space,
permissible views of the virtual space, or a game parameter ”
The Examiner finds claims 1 ’s “a rate at which time passes,
dimensionality of objects within the virtual space, permissible views of the
virtual space, or a game parameter” limitation is taught in the combination
of Trench and Leahy. (Non-Linal Action 12—14.)
Trench provides a virtual space to a user (“player”), and tracking and
updating a location of the player in virtual space. (Trench 130.) Appellants
argue the cited portions of Trench relate only to the movement of the user’s
avatar and how such movements affect the user’s view, and that this view “is
unrelated to the parameters of the virtual place dictating how the user
interacts with that place.” (Appeal Br. 14—15.) However, the Examiner
finds that Trench discloses game parameters that are used to measure player
movement and determine player performance. (Non-final Action 14.)
While Appellants address paragraphs 30 and 31 of Trench, paragraphs 99,
100, and 171, also cited by the Examiner, disclose that virtual obstacles may
be defined, given characteristics of “static vs. dynamic, number, speed, size,
and shape,” and generated on the display. The user is prompted to determine
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whether such obstacles should be avoided or intercepted, and to give scoring
parameters and goals. (French 199.) We agree with the Examiner that the
generation of obstacles in the view of virtual space and the provision of
performance indicia comprises a game parameter according to which a
virtual space is expressed. See Non-Final Action 14.
Therefore, we are not persuaded by Appellants’ arguments of error in
the Examiner’s obviousness rejection of independent claim 1, and dependent
claims 2-4, argued together with claim 1. (Appeal Br. 15.) Additionally,
the obviousness rejection of independent claim 5 and dependent claims 6—8
are argued on substantially the same basis (Appeal Br. 15—19), and we are
not persuaded of error in the rejection of these claims. We sustain the
obviousness rejections of claims 1—8.
(E) Obviousness Rejection — Claim 9
“a hierarchy of acoustic areas ” and
“one or more subordinate acoustic areas ”
The Examiner finds the combination of Leahy and Suzuki teaches or
suggests the limitations of claim 9, including teaching or suggesting “the
virtual space further including a hierarchy of acoustic areas having one or
more subordinate acoustic areas that are contained within a superior acoustic
area in the hierarchy,” as recited in claim 9. (Non-Final Action 17—20.)
Suzuki relates to a virtual space and a server, which tracks position
information for users, each user connected to the server via a terminal and
represented in virtual space by an avatar image. (Suzuki, Abstract.) Based
on the position and “direction of eyes” of a user’s avatar, the user receives
for display a visual field image, and other avatars viewable from the user’s
position and direction are displayed according to their position and direction.
(Id.) The Examiner finds that Suzuki discloses user positioning in groups,
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such that a conversation allows a user to hear voices of all the other avatars
in the group clearly as environmental sounds. (Non-Final Action 19—20.)
Appellants argue that Suzuki’s “determination of which voices may
be heard, and at what volume, relies purely on a user’s engagement in
conversation.” (Appeal Br. 21.) However, as the Examiner finds, in Suzuki
the user’s position and direction is used to determine whether a user is
engaged in conversation. (Non-Final Action 20.) In Suzuki, a group of
avatars, each satisfying “conversation enable conditions on the basis of
position data and direction-of-eyes data,” hear both speech data from others
in the conversation and environmental sounds, while those not engaged in
conversation receive a different sound mix. (Suzuki 13:44—14:48.)
Therefore, while Appellants are correct that the determination of an acoustic
mix is based on a user’s engagement in a conversation (Appeal Br. 21), we
agree with the Examiner that Suzuki teaches a direct relationship between a
user’s engagement in a conversation and the boundaries created by the
position of the user and other avatars. (See Suzuki Fig. 12.) We agree with
the Examiner’s finding (Non-Final Action 19—20) that the boundaries
created by a user’s position and direction in Suzuki teach or suggest a
subordinate acoustic area (of the conversation) within the superior acoustic
area.
Appellants also argue that the boundaries of the at least one
subordinate acoustic area are not adjustable by the user independently from
the boundaries of other acoustic areas. (Appeal Br. 22—24.) Again, since
the user’s conversational area is determined with reference to the user’s
position and direction, with the “user deciding] to stay in [the] group, whom
to talk [to] and . . . who[m] to hear” in Suzuki, we agree with the Examiner
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that the combination of the cited art teaches or suggests the independent user
selection of the boundary of the subordinate acoustic area of conversation.
(See Non-Final Action 4.)
Therefore, we are not persuaded by Appellants’ arguments of error in
the Examiner’s obviousness rejection of independent claim 9, and of
dependent claims 10-17, 19, and 20, argued together with claim 9 (Appeal
Br. 20-25.) We sustain the obviousness rejections of claims 9—17, 19, and
20.
DECISION
The Examiner’s nonstatutory double patenting rejection of claims 1—
17, 19, and 20 is affirmed.
The Examiner’s 35U.S.C. § 112, second paragraph, rejection of
claims 9-17, 19, and 20 as indefinite is reversed.
The Examiner’s 35 U.S.C. § 103(a) rejection of claims 1—17, 19, and
20 is affirmed.
Pursuant to 37 C.F.R. § 1.136(a)(l)(iv), no time period for taking any
subsequent action in connection with this appeal may be extended.
AFFIRMED
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