Ex Parte Koster et alDownload PDFPatent Trial and Appeal BoardMar 29, 201711898863 (P.T.A.B. Mar. 29, 2017) Copy Citation 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. 2 Appeal 2014-002652 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. 3 Appeal 2014-002652 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? 4 Appeal 2014-002652 Application 11/898,863 (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”). 5 Appeal 2014-002652 Application 11/898,863 (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. 6 Appeal 2014-002652 Application 11/898,863 (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 7 Appeal 2014-002652 Application 11/898,863 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 8 Appeal 2014-002652 Application 11/898,863 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, 9 Appeal 2014-002652 Application 11/898,863 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 10 Appeal 2014-002652 Application 11/898,863 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 11 Copy with citationCopy as parenthetical citation