Ex Parte Nonaka et al

Patent Trial and Appeal Board

Aug 18, 2017

11984443 (P.T.A.B. Aug. 18, 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.
11/984,443 11/16/2007 Toyokazu Nonaka DSG-723-2261 8360
23117 7590 08/22/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
ROWLAND, STEVE
ART UNIT PAPER NUMBER
3716
NOTIFICATION DATE DELIVERY MODE
08/22/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TOYOKAZU NONAKA, TOSHIHARUIZUNO,
KENTARO NISHIMURA, KENTA TANAKA,
NORIHITO ITO, and MASAYUKI OKADA
Appeal 2016-000043
Application 11/984,443
Technology Center 3700
Before: JENNIFER D. BAHR, MICHAEL L. HOELTER, and
LEE L. STEPINA, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 1—19 and 21—54. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM IN PART.
Appeal 2016-000043
Application 11/984,443
CLAIMED SUBJECT MATTER
The claims are directed to a game system and storage medium storing
a game program. Spec. 11. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A game system comprising a game controller including a
first housing configured to be holdable with one hand of a player,
a game apparatus, and a first movement detector for generating
data indicative of aspects of movement of the first housing,
the game controller including a direction instruction
section, and
the game apparatus including:
a processor; and
a memory coupled to the processor, the memory
storing instructions that, when executed by the processor, cause
the game apparatus to perform operations comprising:
receiving, from the game controller, transmissions
of operation data, each of one or more of the transmissions of
operation data including both direction instruction input data
corresponding to a direction instruction input supplied to the
direction instruction section of the game controller and first
movement detector data generated by the first movement
detector;
determining a movement direction of a first object,
which appears in a virtual three-dimensional game world, in
accordance with the direction instruction input data; and
determining a posture of the first object in the
virtual three-dimensional game world in accordance with the first
movement detector data.
Appeal Br. 34 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Bathiche US 7,145,551 B1 Dec. 5,2006
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Willner US 2001/0045938 A1 Nov. 29, 2001
Zalewski US 2006/0287086 A1 Dec. 21,2006
REJECTIONS1
(I) Claims 1—16, 24, and 26—54 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bathiche and Zalewski.
(II) Claims 17—19, 21—23, and 25 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bathiche, Zalewski, and Wilner.
OPINION
Rejection (I), Bathiche and Zalewski
Claim 1
The Examiner finds that Bathiche discloses many of the features
recited in claim 1, including a game controller that has a first movement
detector (Bathiche monitors the orientation of a controller housing via tilt
sensors 108) and a direction instruction section (Bathiche receives input
from multiple input switch device 262). Final Act. 2—3 (citing Bathiche,
3:25—27, 6:1—26, 9:12—27, Figs. 1, 2, 3 A, 5). However, the Examiner finds
that Bathiche does not specifically disclose one or more transmissions of
operation data, each including both (i) direction instruction input data
corresponding to a direction instruction input supplied to the direction
instruction section of the game controller and (ii) first movement detector
1 The Examiner indicated that claim 20 recites allowable subject matter.
Final Act. 29—30.
2 A “direction pad” or “D-pad” is one example of multiple input switch
device 26. Bathiche 3:26, 8:55—57.
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data generated by the first movement detector. Final Act. 3. In other words,
the Examiner finds that Bathiche fails to disclose including information from
both types of control in the same transmission. Nonetheless, the Examiner
finds that Zalewski discloses such a transmission of operation data, and,
further, determines that it would have been obvious “to combine the
teachings of Bathiche and Zalewski in order to allow [a] player to control [a]
game according to their personal preferences, thus making the game[-]play
more enjoyable.” Id. at 3^4 (citing Zalewski 1112).
Appellants argue that Bathiche teaches away from including the
above-noted feature because Bathiche uses either of the two modes of
operation, namely, one based on information related to the physical
orientation of the controller obtained via tilt sensors 108 and another based
on input from direction pad 26. Appeal Br. 17—18; see also Reply Br. 3
(arguing the Examiner’s proposed modification changes the principle of
operation of Bathiche). In this regard, Appellants state, “Bathiche . . .
clearly does not contemplate or suggest using both direction instruction
input data (i.e., D-pad data) and movement detector data (i.e., X and Y tilt
information) from a received transmission of operation data to control
objects on a display.” Id. at 18.
In response, the Examiner states:
Appellant’s invention and that of Bathiche both control the
movement of game objects in a three dimensional space (e.g. roll,
pitch, yaw) by using either conventional buttons or motion
sensors. The invention of Bathiche differs in that the player may
use only buttons or only motion sensors to control the game
object at any one time.
Ans. 2. Thus, the Examiner reiterates that Bathiche discloses the two types
of control, similar to what is required in claim 1, but that these types of
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control are used alternately rather than at the same time. The Examiner
finds that nothing in Bathiche discredits or disparages combining both types
of control in accordance with the requirements of claim 1. Id. at 4.
We agree with the Examiner on this point. The difference between
the disclosure of Bathiche and what is required by claim 1 is merely a
deficiency in Bathiche that the Examiner’s proposed modification addresses;
it is not something that would dissuade a person of ordinary skill in the art
from the Examiner’s proposed modification. Nor does the Examiner’s
proposed modification change the principle of operation of Bathiche.
Appellants do not identify anything about the difference in Bathiche that
amounts to teaching away from the arrangement recited in claim 1. Rather,
Appellants’ argument seems to imply that the existence of the difference
would be sufficient in this regard. This is incorrect. A reference teaches
away from a claimed invention when a person of ordinary skill, “upon
reading the reference, would be discouraged from following the path set out
in the reference, or would be led in a direction divergent from the path that
was taken by the applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir.
1994). Appellants do not call our attention to anything in Bathiche that
discourages or leads in a divergent direction from the arrangement recited in
claim 1. Further, as Bathiche already uses direction instruction input data
and movement detector data to control a computer generated object,
receiving these two types of data in a single transmission is not a change in
the operating principle of Bathiche.
Appellants next argue,
Bathiche . . . already discloses an input device including
conventional buttons and inertial sensors. Consequently,
Applicant respectfully submits that combining Zalewski... with
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Bathiche . . . (even assuming without conceding that such a
combination would be appropriate) would not result in the input
device of Bathiche . . . including features or operations not
already present in Bathiche.
Appeal Br. 18. Appellants go on to argue that nothing in Zalewski would
have suggested the Examiner’s proposed modification to Bathiche. Id.
Appellants’ contentions do not apprise us of Examiner error. First,
the Examiner provides a rationale for the proposed modification,
specifically, the Examiner finds that the proposed combination of Bathiche
and Zalewski would “allow the player to control the game according to their
personal preferences, thus making game play more enjoyable.” Final Act.
3^4. Appellants do not dispute this point. See Appeal Br. 17—19. Instead,
Appellants argue that the references do not teach or suggest the Examiner’s
proposed combination. See, e.g., Appeal Br. 18. This leads to a second
issue, it is not necessary for Zalewski to suggest the Examiner’s proposed
modification; rather, all that is necessary is for the Examiner’s reasoning to
be supported by rational underpinnings. KSRInt’l. Co. v. Teleflex, Inc., 550
U.S. 398, 418 (2007). In this case, the Examiner’s unchallenged articulation
of the benefits resulting from the proposed modification satisfy this
requirement. Furthermore, Zalewski explicitly discloses that, during use of a
conventional controller using a joystick and buttons, players “get excited
while playing the game and attempt to control actions or aspects of the game
by moving the entire controller itself around in the air.” Zalewski 137.
Based on this, Zalewski discloses “[t]he detected movements, motions
and/or manipulations of the entire controller body by the user may be used
as additional commands to control various aspects of the game or other
simulation being played.” Id. 138; see also id. 145 (stating, “[i]n this way
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the manner in which the user 108 physically moves the controller 110 itself
is used as another input for controlling the game, which provides a more
stimulating and entertaining experience for the user.”). Given that Bathiche
already discloses control via tilt sensors 108 and control via multiple input
device 26, albeit as alternate forms of control in the same system, the
Examiner’s findings regarding the players’ preferences and making the game
more enjoyable by combining the two modes of control is supported by
rational underpinnings. This finding is buttressed by the Zalewski’s above-
noted description of the benefits of such an arrangement.
Appellants contend, “neither Bathiche . . . nor Zalewski. . . describes
determining movement direction and posture of an object in accordance with
direction instruction input data and movement detector data both of which
are contained in a transmission of operation data.” Reply Br. 1—2.
Appellants’ contention on this point does not apprise us of Examiner
error inasmuch as a preponderance of the evidence supports the Examiner’s
finding that Zalewski “discloses using both a joystick (another type of
discrete control) and inertial sensors to control roll, pitch and yaw”3 and “a
player using the game controller of Bathiche could, for example, command a
game object to ‘pitch forward’ using the motion control, switch modes, and
command the object to ‘roll left’ using the button control, all in the same
game sequence.” Ans. 3.
A person of ordinary skill in the art would understand that the control
described in Bathiche and Zalewski is control of the movement and posture
3 The Examiner cites paragraphs 11 and 12 of Zalewski for this finding, but
as these paragraphs merely refer to co-pending applications, and paragraphs
111 and 112 of Zalewski support this finding, it appears that the Examiner
made a typographical error in referring to paragraphs 11 and 12.
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of the computer generated objects generated by entertainment systems. For
example, the controller in Bathiche may control the flight of computer
generated airplane 104. See Bathiche, Figs. 3A, 3B. Bathiche teaches two
modes of operations, and, “[i]n the first mode of operation (referred to as the
sensor mode) the X and Y axis tilt sensors 108 generate orientation
information indicative of the physical orientation of computer input device
14 and provide that information to microcontroller 106 through A/D
converter 120.” Bathiche, 8:40-44. In the second mode, “the X and Y tilt
sensors 108 are not used by the application in controlling the physical
orientation of the object on the visual display screen. Instead, the
application uses the information from multiple switch device 26.” Id. at
8:51—55. Thus, Bathiche uses both modes to control the flight (including
orientation) of the airplane, albeit not simultaneously.
Similarly, Zalewski discloses controlling a computer generated object,
such as a sword or lightsaber (Zalewski 140), via two different types of
input. Describing the first type of input, Zalewski states:
[t]he joystick controls 431 may generally be configured so
that moving a control stick left or right signals movement along
the X axis, and moving it forward (up) or back (down) signals
movement along the Y axis. In joysticks that are configured for
three-dimensional movement, twisting the stick left (counter­
clockwise) or right (clockwise) may signal movement along the
Z axis. These three axis-X Y and Z-are often referred to as roll,
pitch, and yaw, respectively, particularly in relation to an aircraft.
Zalewski till.
Describing the second type of input, Zalewski states, “the joystick
controller 430 may include one or more inertial sensors 432, which may
provide position and/or orientation information to the processor 401 via an
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inertial signal. Orientation information may include angular information
such as a tilt, roll or yaw of the joystick controller 430.” Zalewski 1112.
Thus, the inertial sensors provide position and/or orientation information.
Appellants do not explain persuasively how controlling the movement
and orientation of the computer generated objects, such as the airplane
disclosed by Bathiche and the sword or lightsaber disclosed by Zalewski,
does not correspond to controlling the posture of the object as recited in
claim 1. Both Bathiche and Zalewski disclose using both modes of control
to control movement direction and posture of a computer generated object,
and nothing in claim 1 restricts “determining a movement direction” to be in
accordance with only “the direction instruction input data.” Similarly,
nothing in claim 1 restricts “determining a posture” to be in accordance with
only “the first movement detector data.” Further, the Examiner’s reasoning
for the proposed modification to Bathiche addressing the deficiency in
Bathiche acknowledged by the Examiner to exist is supported by rational
underpinnings. Accordingly, we affirm the Examiner’s rejection of claim 1
as unpatentable over Bathiche and Zalewski.
Claim 8
Claim 8 depends from claim 1 and recites, in part, “a three-
dimensional posture vector, which indicates the posture of the first object in
the virtual three-dimensional game world, is determined in accordance with
the acceleration data.” Appeal Br. 35 (Claims App.).
The Examiner finds that Bathiche discloses the additional features
recited in dependent claim 8. Final Act. 5 (citing Bathiche, 5:48—57; 7:4—
20).
Appellants argue:
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neither Bathiche et al. nor Zalewski et al. discloses or suggests
determining a three-dimensional posture vector indicating the
posture of the first object in a virtual three-dimensional game
world. The rejection of claim 8 makes reference to x, y and z
directions and to accelerometers, but contains no identification
of where either of these references discloses or suggests a posture
vector indicating a posture of an object in a virtual game world.
Appeal Br. 19.
The portion of column 5 of Bathiche cited by the Examiner refers to
the side and rear views of airplane 104 depicted in Figures 3 A and 3B of
Bathiche. See Bathiche, 5:48—65, Figs. 3 A, 3B. Bathiche explains that
changes in orientation of the controller (input device 14) are reproduced in
airplane 104 on the computer screen. See Bathiche, 6:10—13 (stating, “the
physical orientation or pitching movement of user input device 14 is mapped
directly to object 104 on the screen of visual display device 16.”). Bathiche
discloses that “as the input device 14 is rotated about the pitch and roll axes,
the signals from both of the accelerometers are used to obtain an ultimate
orientation value based on an offset of the accelerometers from the gravity
vector.” Bathiche, 7:12—15. Changes due to pitch and roll correspond to
changes in rotational position about the X and Y axes. See Bathiche, 5:59-
65. Thus, Bathiche determines the orientation of airplane 104 in three-
dimensional space in terms of rotation about the X and Y axes. As the
orientation is in three-dimensional space, it includes information regarding
the rotational position of the object relative to the X, Y, and Z axes.
Appellants do not explain how information that establishes the three-
dimensional orientation of the computer generated object in Bathiche (via
information based on X, Y, and Z axes) fails to quality as “a three-
dimensional posture vector, which indicates the posture of [an] object in [a]
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virtual three-dimensional game world . . . determined in accordance with . . .
acceleration data” as required by claim 8. Accordingly, we affirm the
Examiner’s rejection of claim 8 over Bathiche and Zalewski.
Claims 9—11
Appellants make a similar argument for the patentability of claims 9—
11 to the one discussed above regarding claim 8 (Appeal Br. 19-21), and for
the same reasons, we affirm the Examiner’s rejection of claims 9—11 as
unpatentable over Bathiche and Zalewski.
Claims 26, 32, 34—37, and 41—54
Regarding independent claim 26, Appellants state:
As discussed above with reference to claim 1, the proposed
combination of Bathiche . . . and Zalewski... is deficient with
respect to using both direction instruction input data (i.e., D-pad
data) and movement detector data (i.e., X and Y tilt information)
from a received transmission of operation data to control objects
on a display.
Appeal Br. 21. For the same reasons discussed above regarding the rejection
of claim 1, this argument is unpersuasive.
Appellants also repeat, nearly verbatim, the two “determining” clauses
recited in claim 26 and assert that neither of Bathiche and Zalewski
describes or suggests these features. Appeal Br. 21—22. Appellants argue
that claim 32 is patentable based on its dependency from claim 26. Id. at 22.
Appellants’ reproduction of a portion of the requirements of claim 26 and
unexplained assertion that Bathiche and Zalewski do not teach these features
is unavailing. See 37 C.F.R. § 41.37(c)(iv) (stating, “[a] statement which
merely points out what a claim recites will not be considered an argument
for separate patentability of the claim.”); see also In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (holding that the Board had reasonably
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interpreted 37 C.F.R. § 41.37(c)(l)(vii)(2011) as requiring “more
substantive arguments in an appeal brief than a mere recitation of the claim
elements and a naked assertion that the corresponding elements were not
found in the prior art”). For the same reasons, Appellants’ discussion of
claims 34—37 and 41—54 (Appeal Br. 27—28) do not amount to separate
arguments for patentability of these claims. Consequently, we affirm the
Examiner’s rejection of claims 26, 32, 34—37, and 41—54 as unpatentable
over Bathiche and Zalewski.
Claims 27—31
Claim 27 recites, in part, “determining inclination of the housing
based on the movement direction data, and inclining the object based on the
determined inclination in a direction perpendicular to a current forward
direction of the object.” Appeal Br. 40-41 (Claims App.).
Appellants contend, “[pjage 10 of the office action cites to no
particular portion of either Bathiche ... or Zalewski... in connection with
inclining the object in a direction perpendicular to a current forward
direction as claimed, for example.” Appeal Br. 22. Appellants’ argument
on this point is unavailing because, as discussed above regarding claim 1,
Bathiche controls the orientation of the computer generated object, for
example, Bathiche maps the physical orientation or pitching movement of
user input device 14 directly to object 104 on a computer screen. See
Bathiche, 6:10—13. The controller in Zalewski provides orientation
information such as roll, pitch, and yaw. See Zalewski 1112. Thus, the
Examiner’s findings in this regard are supported by a preponderance of the
evidence. Accordingly, we affirm the Examiner’s rejection of claim 27 as
unpatentable over Bathiche and Zalewski.
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Appellants make similar assertions regarding claims 28—31 (Appeal
Br. 22—26), and, for the same reasons, we affirm the Examiner’s rejection of
these claims as unpatentable over Bathiche and Zalewski.
Claim 33
Independent claim 33 recites, in part, “a first housing configured to be
holdable with one hand of a player” and “a second housing provided
independently of the first housing and configured to be holdable with
another hand of the player.” Appeal Br. 45 (Claims App.).
The Examiner refers to the “second handle” of Bathiche for this
feature. Final Act. 17. Appellants contend that the second handle of
Bathiche is not a housing provided independently of the first housing.
Bathiche discloses computer input device 14 with “two depending
handles.” See Bathiche, 3:16—33, Figs. 1, 3A, 3B. In other words, when
Bathiche’s device 14 is moved, both “depending handles” are likewise
moved. We thus do not agree with the Examiner’s finding that one of these
handles qualifies as a second housing provided independently of a first
housing. Accordingly, we reverse the Examiner’s rejection of claim 33 as
unpatentable over Bathiche and Zalewski.
Claim 38
Dependent claim 38 recites, in part, “acceleration generated in a
predetermined direction of the housing is determined based on the
movement detector data, and the object is caused to perform the
predetermined motion when the determined acceleration satisfies a
predetermined condition.^ Appeal Br. 47 (Claims App.) (emphasis added).
The Examiner relies on reference number 124 of Bathiche to teach the
feature highlighted above (Final Act. 20), but Appellants contend, “filter
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block 124 simply over-samples and smoothes data from the sensors[, and
tjhere is no determination here regarding whether the acceleration satisfies
some condition” (Appeal Br. 28).
We agree with Appellants on this point because block 124 of Bathiche
smooths data received from the sensors used by Bathiche. Bathiche, 10:45—
54. In this regard, Bathiche states, “[t]he filtering logic may illustratively
employ low pass filtering techniques to remove large, or abberational,
spikes.” Id. at 10:50-52. Thus, filtering relates to the shape of the signal
received and is not based on whether acceleration satisfies a predetermined
condition.
Claims 39 and 40
Dependent claims 39 and 40 recite similar limitations to the one
discussed above regarding claim 38, but replace “determined acceleration”
with “history” and “determined rotation,” respectively. Appeal Br. 47
(Claims App.).
The Examiner relies on the same teachings in Bathiche for the
features of claims 39 and 40 as discussed above regarding the rejection of
claim 38 (Final Act. 20—21), and Appellants make the same argument
(Appeal Br. 29). Accordingly, we reverse the rejection of claims 39 and 40
as unpatentable over Bathiche and Zalewski for the same reasons discussed
above regarding the rejection of claim 38.
Rejection (II), Bathiche, Zalewski, and Willner
Claim 17
Dependent claim 17 recites, in part, “the game controller further
includes a second housing independent of the first housing and configured to
be holdable with another hand of the player.” Appeal Br. 37 (Claims App.).
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The Examiner relies on Bathiche to teach this feature, consistent with the
Examiner’s findings of fact in the rejection of claim 33. See Final Act. 17,
26. For the same reasons discussed above regarding claim 33, we reverse
the Examiner’s rejection of claim 17.
Claim 18
Claim 18 recites a feature substantially similar to the one discussed
above regarding claim 17 (Appeal Br. 38 (Claims App.)), and for the same
reasons, we reverse the Examiner’s rejection of claim 18.
Claims 19, 21—23, and 25
Claims 19, 21—23, and 25 depend from claim 17 (Appeal Br. 38—39
(Claims App.), and we reverse the Examiner’s rejection of these claims as
unpatentable over Bathiche, Zalewski, and Willner based on their
dependency from claim 17.
DECISION
(I) The Examiner’s rejection of claims 1—16, 24, and 26—54 as
unpatentable over Bathiche and Zalewski is affirmed as to claims 1—16, 24,
26—32, 34—37, and 41—54 and reversed as to claims 33 and 38-40.
(II) The Examiner’s rejection of claims 17—19, 21—23, and 25 as
unpatentable over Bathiche, Zalewski, and Willner is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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