Ex Parte Palombo et al

Patent Trial and Appeal BoardMar 17, 2016

10362376 (P.T.A.B. Mar. 17, 2016)

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. 10/362,376 06/23/2003 Albert Palombo 1567P446 1556 7590 03/18/2016 Blakely Sokoloff Taylor & Zafman 7th Floor 12400 Wilshire Boulevard Los Angeles, CA 90025-1026 EXAMINER D'AGOSTINO, PAUL ANTHONY ART UNIT PAPER NUMBER 3716 MAIL DATE DELIVERY MODE 03/18/2016 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALBERT PALOMBO, JEAN-CLAUDE WOIVRE, and FABRICE MADIGOU ____________ Appeal 2014-002535 Application 10/362,376 Technology Center 3700 ____________ Before JOHN C. KERINS, STEFAN STAICOVICI, and LEE L. STEPINA, Administrative Patent Judges. STEPINA, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Albert Palombo et al. (Appellants) appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1, 2, 27–29, and 43–49.1 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 Claims 3–19 have been cancelled, and claims 20–26 and 30–42 have been withdrawn from consideration. Br. 3. Appeal 2014-002535 Application 10/362,376 2 CLAIMED SUBJECT MATTER Appellants’ invention “relates in general to electronic game apparatuses.” Spec. 1, ll. 5–6. Claim 1, the sole independent claim, is representative of the claimed invention and reads as follows: 1. An electronic multiuser screen platform, especially for electronic games, comprising: a generally flat casing, a flat display screen provided on an upper surface of the casing, a central processing unit having electronic processing, storage and interface circuits housed in the casing, and a display control circuit for controlling a display on said flat display screen, a plurality of identical sets of user interface elements for several users, separate from the casing, connected to the interface circuits housed in the casing and adapted to be distributed around the flat display screen of said casing, each set of user interface elements comprising displacement buttons, and circuits for user communication with the interface circuits of said central processing unit, for acting on the displacement of at least one display element displayed by the flat display screen of said casing, wherein said set of user interface elements comprise a means for producing an indication of the side of the casing from which a set of user interface elements is used, and said central processing unit is configured to change the way in which said displacement buttons act on the displacement direction of said at least one display element on said flat display screen, depending upon said indication of the side of the casing from which a set of user interface elements is used. Br. 16. Appeal 2014-002535 Application 10/362,376 3 REFERENCES RELIED ON BY THE EXAMINER Bleich US 4,570,158 Feb. 11, 1986 Yang US 5,098,110 Mar. 24, 1992 Norman US 5,702,305 Dec. 30, 1997 Glapion US 5,938,528 Aug. 17, 1999 Ng US 6,042,478 Mar. 28, 2000 Leifer US 6,585,596 B1 July 1, 2003 REJECTIONS ON APPEAL2 (I) Claims 1, 2, 28, 29, and 49 are rejected under 35 U.S.C. § 103(a) as unpatentable over Glapion and Norman. (II) Claim 27 is rejected under 35 U.S.C. § 103(a) as unpatentable over Glapion, Norman, and Yang. (III) Claims 43 and 44 are rejected under 35 U.S.C. § 103(a) as unpatentable over Glapion, Norman, and Bleich. (IV) Claims 45–47 are rejected under 35 U.S.C. § 103(a) as unpatentable over Glapion, Norman, and Leifer. (V) Claim 48 is rejected under 35 U.S.C. § 103(a) as unpatentable over Glapion, Norman, and Ng. ANALYSIS Rejection I Claim 1 recites, in part, that “displacement buttons act on the displacement direction of said at least one display element on said flat display screen, depending upon said indication of the side of the casing from which a set of user interface elements is used.” The Examiner finds that the 2 The rejection of claims 1, 2, 27, 29, and 43–49 under 35 U.S.C. §112, second paragraph, as indefinite, is withdrawn by the Examiner. Ans. 2. Appeal 2014-002535 Application 10/362,376 4 claimed displacement buttons are shown in Glapion’s Figure 1 as “‘quadrant direction keys’ 28; also referred to by Galpion as the ‘toggle’ keys [(citing Glapion, col. 5 ll. 35–41)] for executing the method of Fig. 2a.” Non-Final Act. 5 (mailed Oct. 15, 2012). In view of this, the Examiner takes the position that “when Galpion states the details of the set of quadrant keys 28 among others ‘will be described in greater detail hereinafter’ his reference to ‘the toggle button’ of [column 5, line 12], having explained all the other buttons and their uses, refers back to the ‘quadrant direction keys’ 28.” Id. at 5–6 (citing Glapion, col. 4, l. 30). The Examiner explains that “in play of the game logically, the quadrant direction key[s] facilitate tile selection [(Glapion, col. 5, ll. 7–18)] and ‘where’ tiles are placed during game play [(Glapion, col. 5, ll. 35–40)].” Id. at 6. The Examiner concludes that because “Galpion shows quadrant direction keys 28 adjacent to the stations identified by 1, 2, 3, 4, the quadrant direction keys [are] part of a panoply of selection keys and displays each oriented towards a player at each station,” and because this arrangement “allow[s] each player to hit the ‘up’ key making the display element move away from the respective player,” as such, “the movement is dependent on which side the toggle or quadrant direction keys are used.” Id. at 7–8. Appellants argue that “a person of ordinary skill in the art would conclude that the ‘toggle button’ (also named ‘toggle key’, e.g. col. 5, line 33) and the ‘set of quadrant directions keys 28’ are distinct.” Br. 9. Appellants point to each instance where Glapion uses the term “toggle” or “toggling” (see Br. 9) and assert that although “Glapion describes the toggling situations in great detail, there is no discussion as to how multiple keys could be used in these various toggling situations.” Id. at 10. Appeal 2014-002535 Application 10/362,376 5 Appellants argue that if there is “a role for the ‘set of quadrant directions keys 28’ this role could only be for conventional motion in one and only one corresponding screen and not related to the location/positioning in a main/shared display.” Id. at 12. We agree with the Examiner’s finding that Glapion’s reference to “the toggle button” refers to “quadrant direction keys 28.” An Examiner’s burden of proving unpatentability when rejecting claims in a patent application is by a preponderance of the evidence. In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985). In order to satisfy this standard, the evidence must demonstrate that it is more likely than not that the alleged facts are actually true. See Bosies v. Benedict, 27 F.3d 539, 542 (Fed. Cir. 1994) (the preponderance of the evidence standard requires the finder of fact to believe that the existence of a fact is more probable than its nonexistence). In the present case, the Examiner finds that the toggle keys are the quadrant keys because, the toggle keys “position the selected domino in a main display that requires up, down, left and right maneuvering,” and quadrant keys 28 are best suited for such maneuvering. Ans. 9–10. As such, the Examiner correctly reasons that “the ‘toggle key’ used for both the selection in the player display 22 and placement in the main display 14 are intuitively navigation steps performed by ‘toggling’ or navigating using the quadrant keys 28.” Id. at 9; see also Glapion, col. 5, ll. 7–38. “[W]hen the PTO shows sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” See In re Spada, 911 F.2d 705, 708 (Fed Cir. 1990). Appellants provide no persuasive evidence or technical argument sufficient to show that one of ordinary skill in the art would consider that Appeal 2014-002535 Application 10/362,376 6 quadrant keys 28 do not operate as toggle keys as the Examiner proposes. Rather, Appellants speculate, in attorney argument, as to the existence of an additional toggle key or keys, because Glapion discloses that “a plurality of unillustrated buttons may be included.” Br. 10–11 (citing Glapion, col. 6, ll. 9–11) (emphasis omitted). However, this passage clearly refers to initiating different modes of operation, which would require a single set of buttons at only one play station (see Glapion, col. 4, ll. 44–53), and not multiple toggle keys (at each play station) allowing each player to move a domino as required on the display board. Appellants also assert that if “the toggle function could be performed using direction keys,” this would “result[] in a chaotic and non-user friendly experience” and “would necessitate a special arrangement of the circuitry.” Id. at 10. Again, Appellants’ assertion is speculation based on the assumption that multiple players toggle simultaneously. See id. However, simultaneous toggling does not occur, because Glapion discloses that “each player takes a turn utilizing the toggle button to select a domino.” Glapion, col. 5, ll. 11–12. Glapion also discloses that “the pass button may be depressed thus signalling to the next player that it is his turn,” which a player may discern because “the player displays may optionally be adapted to illuminate or change color to indicate the same.” Id. at col. 5, ll. 46–50. Appellants make additional arguments that there are grammatical inconsistencies (see Br. 9), that the Examiner is using an ex post facto analysis (see Br. 10), that a “next” key would be used (see Br. 11), and that direction keys would only be used in a personal screen, not the main display screen (see Br. 12). Like the Examiner, we find none of these arguments persuasive because these arguments deviate from Glapion’s disclosure. See Appeal 2014-002535 Application 10/362,376 7 Ans. 8–11. Having carefully considered each of Appellants’ arguments, we are not persuaded that the Examiner’s position is incorrect. Rather, the Examiner’s position that Glapion’s use of the terms “toggle button,” “toggling,” and “toggle key” refer to movement of the quadrant direction keys 28 is supported by a preponderance of the evidence. Moreover, because the Examiner’s finding that “the movement (of the domino) is dependent on which side the toggle or quadrant direction keys are used” (Non-Final Act. 8) logically follows the Examiner’s position, a preponderance of evidence supports the Examiner’s finding that Glapion’s direction keys act “depending upon said indication of the side of the casing from which a set of user interface elements is used,” as recited in claim 1. As such, for the foregoing reasons, we sustain the Examiner’s rejection of claim 1. Appellants do not make separate arguments for any of dependent claims 2, 28, 29, and 49. Br. 12. Accordingly, these claims fall with independent claim 1. Rejections II–V Claims 27 and 43–48 depend from claim 1. Appellants expressly rely on the arguments advanced with respect to claim 1 for the patentability of these claims. Br. 13–14. For the same reasons discussed above, we sustain Rejections II–V. DECISION The decision of the Examiner to reject claims 1, 2, 27–29, and 43–49 under 35 U.S.C. § 103(a) as unpatentable over Glapion and various combinations of Norman, Yang, Bleich, Leifer, and Ng is affirmed. Appeal 2014-002535 Application 10/362,376 8 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