Ex Parte NOJIRIDownload PDFPatent Trial and Appeal BoardMar 23, 201612953947 (P.T.A.B. Mar. 23, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/953,947 11/24/2010 23373 7590 03/25/2016 SUGHRUE MION, PLLC 2100 PENNSYLVANIA A VENUE, N.W. SUITE 800 WASHINGTON, DC 20037 FIRST NAMED INVENTOR Shinta NOJIRI 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 ATTORNEY DOCKET NO. CONFIRMATION NO. Ql21891 4420 EXAMINER MYHR, JUSTIN L ART UNIT PAPER NUMBER 3714 NOTIFICATION DATE DELIVERY MODE 03/25/2016 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): PPROCESSING@SUGHRUE.COM sughrue@sughrue.com USPTO@sughrue.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHINT A NOJIRI Appeal2013-010987 Application 12/953,947 1 Technology Center 3700 Before STEFAN STAICOVICI, GEORGE R. HOSKINS, and LEE L. STEPINA, Administrative Patent Judges. ST AI CO VICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Shinta Nojiri (Appellant) appeals under 35 U.S.C. § 134 from the Examiner's decision rejecting claims 1 and 4--14. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM-IN-PART. 1 According to Appellant, the real party in interest is Konami Digital Entertainment Co., Ltd. Br. 2 (filed May 2, 2013). Appeal2013-010987 Application 12/953,947 INVENTION Appellant's invention relates to a "game device, a control method for a game device, and an information storage medium." Spec. 1, 11. 13-14. Claims 1, 6, and 8-14 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A game device, comprising: a first operation member; a second operation member; a first point control section for causing a first point, which is set in a game space, to move based on a state of the first operation member; a second point control section for causing a second point, which is set in the game space, to move based on a state of the second operation member; an object control section for controlling a position and a posture of an item, which is located in the game space, based on a position of the first point and a position of the second point; and a display control section for displaying the item on a game screen, wherein: the item is held by a game character in the game space; the first point control section causes the first point to move based on the state of the first operation member in a first region, which is set based on a position of the game character; the second point control section causes the second point to move based on the state of the second operation member in a second region, which is set based on the position of the game character, the first region forms a first object and the second region forms a second object, the first object and the second object being different from the thing held by the game character and being located in the game space based on the position of the game character; 2 Appeal2013-010987 Application 12/953,947 the first point control section causes the first point to move on a surface of or inside of the first object based on the state of the first operation member; and the second point control section causes the second point to move on a surface of or inside of the second object based on the state of the second operation member. REJECTIONS The following rejections are before us for review: 2 I. The Examiner rejected claims 1, 4---6, and 8-14 under 35 U.S.C. § 102(b) as being anticipated by Koike (US 2002/0093524 Al, pub. July 18, 2002). 3 II. The Examiner rejected claim 7 under 35 U.S.C. § 103(a) as being unpatentable over Koike in view of Nishimura (US 2002/0193156 Al, pub. Dec. 19, 2002). ANALYSIS The anticipation rejection of claims 1, 4, 5, 11, and 12 The Examiner finds that Koike teaches all of the elements of independent claims 1, 11, and 12. See Final Act. 2-5. Specifically, the Examiner finds that the displayed left hand HL and right hand HR of Koike constitute a "first point [] mov[ing] on a surface of or inside of [a] first object" and a "second point mov[ing] on a surface of or inside of [a] second 2 The Examiner has withdrawn the rejection of claims 1, 4---6, and 9-12 under 35 U.S.C. § 112, second paragraph, as being indefinite. See Ans. 2 (mailed June 20, 2013). 3 Although claims 11-14 are not cited in the heading of this rejection, because they are discussed in the body of the rejection, we consider this to be a mere typographical error on the part of the Examiner. See Final Act. 2. 3 Appeal2013-010987 Application 12/953,947 object," respectively. See Final Act. 3-5, 9-11; see also Koike, Fig. 12. According to the Examiner, Koike' s left hand HL and right hand HR "are properly considered a first object and a second object." Ans. 3 (citing Koike, para. 88). The Examiner further explains that the claimed first and second points are "skeletal reference points" of Koike' s left and right hands HL, HR that are used by Koike' s game device as a "coordinate reference" system for facilitating movement of the left and right hands. Id. at 5. In response, Appellant argues that the Examiner's interpretation of Koike' s hands HL and HR is in error because the hands in Koike cannot be both the claimed "points" and the claimed "objects." Br. 23. According to Appellant, Koike does not teach moving the first and second points on a surface or inside of the first and second objects, respectively, as called for by each of independent claims 1, 11, and 12. See id. Claims are to be given their broadest reasonable interpretation consistent with the Specification. In re Am. A cad. of Sci. Tech. Ctr., 3 67 F.3d 1359, 1364 (Fed. Cir. 2004). In this case, we do not agree with the Examiner's position that a reasonable interpretation of the phrase "on a surface of or inside of' means that points can move with objects as objects move. See Ans. 4 ("Basically as the points are moved so do[] the objects move."). Such an interpretation is inconsistent with Appellant's Specification which describes first point 80 moving along surface 92 of first object 90 and second point 82 moving along surface 96 of second object 94. See Spec. 17, 11. 17-19; Spec. 19, 11. 15-19; Figs 8, 10. The claim language is explicit and consistent with the Specification in its recitation that first and second points move "on a surface of or inside of' first and second objects, respectively. See Br. 59, 64, and 65. We thus agree with Appellant that if 4 Appeal2013-010987 Application 12/953,947 the hands in Koike are both the claimed "points" and the claimed "objects," as the Examiner finds, an absurd result is obtained because the left hand and the right hand cannot each move itself "along a surface or inside of itself," as required by the claims. See Br. 23. Moreover, with respect to the Examiner's reference to a "skeletal reference point," we note that because a "skeletal reference point" is part of a coordinate system, the skeletal reference point maintains a fixed position relative to any point on the object, regardless of the amount of object movement. In other words, a "skeletal reference point" does not move "on a surface of or inside of' an object because as the object, i.e., hands HL, HR, moves, the skeletal reference point would likewise move with the object. In conclusion, for the foregoing reasons, we do not sustain the rejection of claims 1, 4, 5, 11, and 12, under 35 U.S.C. § 102(b) as anticipated by Koike. The anticipation rejections of claims 6, 9, and 10 Each of independent claims 6, 9, and 10 requires, inter alia, a control of "the position and the posture of the item so that a longitudinal direction of the item is substantially parallel with a direction determined based on a direction extending from the first point to the second point." Br. 60, 62, and 63. The Examiner finds that Koike teaches all the elements of independent claims 6, 9, and 10. See Final Act. 5-9. Specifically, the Examiner finds that Kioke teaches: [C]ontrol[ling] the position and the posture of the object so that a longitudinal direction of the object is substantially parallel with a direction determined based on a direction extending from 5 Appeal2013-010987 Application 12/953,947 the first point to the second point (Fig. 12 pots is longitudinal and its shapes and direction are controlled by distance and direction of the objects with the object direction changing for example in a parallel direction when the palms of the hands are applied since the object is manipulated in all three dimensions). Id. at 6. According to the Examiner, because the claimed "parallel direction is determined based . . . on the direction extending from the first point and the second point," in Koike, the "palms of the hands are in a longitudinal direction which causes the item [clay object CL] to extend in a longitudinal direction based on the direction of the two points as they come together." Ans. 5---6. In response, Appellant annotates Koike' s Figure 12 to show that in Koike the claimed directional relationship is perpendicular, rather than parallel. See Br. 3 7. Annotated Figure 12 of Koike is reproduced below: Appellant's annotated Figure 12 of Koike depicts the a "longitudinal direction" of clay object CL as tranverse to a direction extending from a first point (HL) to a second point (HR). Id. 6 Appeal2013-010987 Application 12/953,947 Although we appreciate the Examiner's position that Koike' s hands HL, HR are oriented in a longitudinal direction when deforming clay object CL, nonetheless, because the claimed points are interpreted by the Examiner as Koike's hands (see Final Act. 5), we agree with Appellant that the claimed "direction extending from the first point to the second point" is substantially transverse, not parallel, to the longitudinal direction of clay object CL. See Br. 37, 41, and 45. In other words, when hands HL and HR in Koike move to deform clay object CL, the direction extending from the left hand to the right hand is perpendicular, not parallel, to the longitudinal direction of the clay object item CL. In conclusion, for the foregoing reasons, we do not sustain the rejection of claims 6, 9, and 10, under 35 U.S.C. § 102(b) as anticipated by Koike. The anticipation rejection of claims 8, 13, and 14 Each of independent claims 8, 13, and 14 requires, inter alia, "acquiring a change direction of the position and the posture of the item as a basic direction in a case where a change amount of the position and the posture of the item per predetermined time period is larger than a reference amount." Br. 61, 66, and 67. The Examiner finds that Koike teaches all the elements of independent claims 8, 13, and 14. Final Act. 6-7. Specifically, the Examiner finds that Koike teaches "using operation member 70 to control the left hand (first point) and operation member 72 to control the right hand (second point) in order to modify an object [CL] including its position and posture." Id. at 7. 7 Appeal2013-010987 Application 12/953,947 Appellant concedes that Koike shows determining a change in force per unit time, but argues that Koike fails to teach the claimed "change direction." See Br. 48. According to Appellant, "Koike does not evaluate the direction of the [operating] input." Id. Appellant further argues that, "Koike fails to disclose the claimed reference amount." See id. at 49. We are not persuaded by Appellant's arguments because as the Examiner correctly finds, by deforming clay object CL in Koike, a change in direction of the position and the posture of the clay object CL occurs. See Ans. 6. In other words, deformation of clay object CL also brings about a change in direction of the position and the posture of clay object CL. For example, in Figures 19-21 of Koike, deforming clay object CL to form a mug without handles, cutting the resulting mug using cut-off string 517, and then lifting the resulting mug from wheel PW includes changes in direction of the position and the posture of the clay object CL. See Koike, paras. 113-116. Appellant has not persuasively argued otherwise. Additionally, we agree with the Examiner's finding that the reference amount "would be any reference amount required to overcome an ideal state of no input on a controller, including force greater than zero." See Ans. 6. Appellant's conclusory argument that a reference amount of zero would eviscerate the last two limitations of claims 8, 13, and 14 (see Br. 49, 52, and 55) is not persuasive because attorney argument cannot take the place of evidence in the record. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). As the Examiner correctly finds, "no change will occur till at least a reference amount of zero is overcome[] by the controller." Final Act. 13. In conclusion, for the foregoing reasons, we sustain the rejection of claims 8, 13, and 14 under 35 U.S.C. § 102(b) as anticipated by Koike. 8 Appeal2013-010987 Application 12/953,947 The obviousness rejection The Examiner's use of the disclosure of Nishimura does not remedy the deficiencies of Koike as described supra with respect to the rejection of claim 1. See Final Act. 12. Accordingly, for the same reasons as discussed above, we also do not sustain the rejection under 35 U.S.C. § 103(a) of dependent claim 7 as unpatentable over Koike and Nishimura. SUMMARY The Examiner's decision to reject claims 1 and 4--14 is affirmed as to claims 8, 13, and 14, and reversed as to claims 1, 4--7, and 9-12. 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 9 Copy with citationCopy as parenthetical citation